HKSAR v. HUI RAFAEL JUNIOR , also known as HUI SI-YAN RAFAEL AND OTHERS

Subject to reporting restrictions as per paragraph 19 of the judgment

HCCC 98 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 98 OF 2013

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R U L I N G

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1. I am asked to rule in principle on the question of whether certain chronologies and flowcharts should be given to the jury before the contents of the documents are established by admissible evidence. Although the objection to this course by the prosecution is shared by all defendants, the argument has been presented primarily by Mr Lok SC on behalf of D2.

2. For the prosecution, Mr Perry QC argues that in a case such as this, it is necessary for the efficient presentation and comprehension of the case, and the evidence to be called in support of it, that the jury be assisted by the material in question at the earliest opportunity, namely during his opening address.  He submits that the material will be of real benefit to all parties concerned (which, apart from the jury, would include the advocates and myself as judge).  He suggests that if one asks the fundamental question ‘Do these documents on their face make this case easier to understand and present to the jury?’, the answer is ‘Of course they do, and it is essential that they be used’.  He readily acknowledges that if any of the entries, each of which can be proved by admissible evidence, is ultimately found to be wrong, the document can be amended or modified.  Finally, he suggests that it is unrealistic to think that a Hong Kong jury would misunderstand their duty and decide the case on the basis of a prosecution chart rather than on the actual evidence.

3. Mr Lok, on behalf of the defence, does not take issue with the notion of chronologies or flowcharts being provided to juries in complex cases per se: the question is when that should be done.

4. It is argued that it would cause substantial prejudice to the defence if the prosecution were permitted to provide the jury with such material because the jury would be unable to check any of the contents of the material when the evidence has not yet been heard and/or tested.  The placing of it prematurely in their hands, particularly in a lengthy case when the defence case will not be reached for several weeks or months, will give the prosecution an unfair advantage and risk contaminating the jury’s mind with (at that stage) unproven, untested and inadmissible evidence.  Furthermore, should any aspect of the material prove to be unfounded or incorrect, it will be very difficult for the jury to put those aspects out of their mind.  Mr Winter QC made a similar submission arguing that the way the material had been prepared and selected was designed to give the prosecution a perceived forensic advantage in advance of the defence.

5. Mr Lok further submits that there is no duty on the prosecution to produce such material where such a course would engender the type of unfairness and prejudice I have just described.  In respect of the authorities cited by the prosecution, Mr Lok suggests that none of them support the notion of giving the jury copious, untested material in advance of its contents being properly established by admissible evidence.

6. It is clear from such authorities as there are on the use of such material as chronologies and fund flow charts that the matter is ultimately one of judicial discretion.  In R v Sharon Lilley [2003] EWCA Crim 1789, prosecuting counsel produced what was described (at para 12) as “an abstract chronology which would highlight the important and significant events and personalities in a way which would be helpful to the jury”.  In respect of a ground of appeal concerning the use of such a schedule, the Court held as follows, at para 20:

“We turn to the ground of appeal relating to the use of the schedule provided by the prosecution. We have no hesitation in rejecting the argument that the judge in any way wrongly exercised what is undoubtedly a discretion in the circumstances of such cases, which is to determine the extent to which it may be sensible to permit the jury to be provided with some help by way of a tool, aide memoir, whatever one would like to call it, with which to grapple with and deal with some of the arguments in relation to matters of detail, such as those which undoubtedly arose in the course of the cross-examination by appellant’s counsel in the course of this case. There is nothing in the submissions that we have heard which convinces us that the particular way in which the schedule was drawn or the fact that it undoubtedly contained some matters of contention should in any way suggest to us that the judge should for any particular reason relating to the content of the schedule have prevented the prosecution from using it.”

7. It is true that the schedule in Sharon Lilley was not placed before the jury by the prosecution in its opening nor prior to the contested evidence being heard.  But nor was it put forward in “an uncontroversial form or in a way which provided for the appellant’s case to be identified as well as the prosecution case” (para 12).  To that extent, the circumstances in Sharon Lilley were similar to those in R v Vaughn Bennet, New Zealand Court of Appeal Case No. CA 457/2003 (Unreported), to which Mr Lok drew my attention. Of the timeline schedule produced by the prosecution in Vaughn Bennet, the Court held, at para 55:

“We see no unfairness in the provision of the timeline by the Crown to the jury. While the detailed defence evidence which had supported its case was not included in the timeline, it was clearly noted in the timeline where there was a dispute over the evidence. The jury had the ability to check all of the matters in the timeline against the evidential transcript and there would have been nothing to stop the defence putting in its own chronology if it had considered that this would have assisted the case.”

8. I was not, however, referred to an earlier New Zealand Court of Appeal decision dealing more relevantly and specifically with the provision of flowcharts to the jury during the prosecution opening.  In R v R, New Zealand Court of Appeal Case No’s 181 and 182/1999 (Unreported), the Court, which included one member who later formed part of the Court in Vaughn Bennet, held, at para’s 9-11:

“The second ground is even less tenable. It is that the Judge allowed the prosecution when opening the case to place a flowchart before the jury. This was a fairly simple document which amounted to no more than a chronology of some events which are not in dispute, such as the birth dates of the complainants, and of the dates of the alleged offending. In each case the annotation referring to an offence made it clear that this was simply an allegation, and there was a cross-reference to the count in the indictment. The Judge gave the jury an entirely appropriate instruction on the use of a flowchart when he summed up and we understand that he had given a similar instruction when the chart was put before the jury at the commencement of the trial. He clearly told the jury that it was not proof of the entries shown in it and that proof must come from the evidence. He asked them to consider whether the entries on the flowchart were accurate and told them that they were free to use it as they wished “so long as you are satisfied that the information on the schedule has been proven or confirmed by the actual evidence, or that it is simply regarded by you … as a tool to assist you without itself of course being taken to prove anything.”

Mr Weir [counsel for the appellant] accepted the appropriateness of this direction but argued that a jury should not be supplied with a flowchart, and certainly not at the beginning of the case, unless the trial will be lengthy or of great complexity.  However, we see nothing untoward in the practice adopted in this case.  Indeed, it is to be commended.  The flowchart will have been helpful to the jury as a chronological context for expected evidence.  Furthermore, as Mr Weir accepted, there could have been no objection if prosecuting counsel had orally taken the jury through a chronology, suggesting to them that they should take notes of relevant events and indicating which matters remained in dispute and which would have to be the subject of proof.  The flowchart did no more than that.  Importantly, of course, it was not put before the witnesses and so did not act as a prompt for them, which would have been quite wrong.

This second ground also fails.”

9. I cite this case for no other reason than because it deals directly with the issue of the propriety of producing and referring to flowcharts by a prosecutor during his opening address.  Of course every case will be different.  Some cases, usually simple straightforward cases, will not justify the production of any such material at all at any stage of proceedings: others will warrant schedules in varying degrees of detail and complexity, commensurate with the case and the issues with which they deal.  And as to flowcharts dealing with the movement of money, how much detail they contain will obviously depend on the length, complexity and intricacy of the evidence concerned.  I note that the facts in R were relatively straightforward and that the trial lasted 7 days from beginning to end.  It did not involve the convoluted channelling of funds through various accounts in a trial expected to last more than 70 days.

10. In respect of the Hong Kong authority of HKSAR v Sin Wing Yi [2008] 3 HKLRD 352, it was submitted by Mr Lok that it is not authority for schedules or chronologies being provided before the contents are established by admissible evidence.  I am not sure, with respect, that that is a correct assessment of this judgment.  The district judge was apparently dismayed by what he discovered of the state of the evidence at what was effectively a pre-trial review before the trial had got under way.  His frustration was then said to be “further heightened when having perused the prosecution’s written opening (he) asked the prosecutor to explain the relevance of various witnesses to that which the prosecution was trying to establish and, at least in (his) view, the prosecutor was unable sufficiently to do so” (para 14).

11. It might be observed that a district court judge is in a similar position to a jury in a criminal trial to the extent that he will not have had (as a judge of the High Court would have had) the benefit of reading the witness statements and evidence in a particular case prior to trial.  All he will generally have to go on is the Charge Sheet, the prosecution’s written Summary of Facts (supplemented as it often is by a written opening), a list of witnesses and any record of pre-trial review proceedings.

12. The Court in Sin Wing Yi had this to say of that particular judge’s actions, at para’s 42-43:

“It is a judge’s positive duty to manage trials. His function is to adjudicate cases and that means adjudication upon evidence properly and efficiently presented. If that requires a vigorous management, then he must manage vigorously. And if counsel, whether for the prosecution or the defence, are not presenting their respective cases in an intelligible and economical manner, the judge must ensure that they do so. Firm skilled management by the court is not inconsistent with the interests of a defendant for no one is hereby advocating the exclusion of relevant evidence, or the inclusion against him of inadmissible evidence, or the use of a biased procedure. Not only did the Judge in the present case not err in his approach or intervene inappropriately, he performed the judicial task in a complex commercial crime case in precisely the way it should be performed.

The Judge by his urgings eventually succeeded in having the prosecutor provide various schedules of exhibits and what amounted to core bundles of exhibits. The trial then in fact took 11 days as compared with the prosecution’s estimate of 40 days given at its commencement. That is a reflection of the effect the provision of materials such as schedules, flowcharts and other such summaries of evidence have in the presentation of commercial crime or other complex criminal cases. The days of such cases being prosecuted by the step-by-step production of documents are long gone. It is a fundamental necessity for the prosecutor of such cases to have prepared well in advance materials such as schedules, bundles and affirmations and draft or signed factual admissions which allow inter alia the formal production of the exhibits the subject of those schedules. The commencement of such a trial without that being done would in most cases be wholly unacceptable whether before a single judge or a jury.”

13. It seems to me that the Court was indeed urging the provision of materials such as chronologies and flow charts, amongst other types of schedules and summaries, prior to the commencement of evidence, so that a complex case can be properly and efficiently presented; whether it be to a district judge or a jury, neither of whom will know what the case is about.

14. But even if I am wrong in interpreting this authority as permitting, indeed requiring in appropriate cases, such schedules to be presented by the prosecution in opening a complex case to a single judge or jury, and if the New Zealand authority of R on this point is ignored and laid to one side, it is clear that it is my duty to see that the prosecution (as well as the defence) present their case in an intelligible and economical manner. How I achieve that objective is within my discretion.

15. Unlike a district judge or a jury, I have had the advantage of reading all of the papers in the case before me and of hearing no less than 10 substantive applications relating to the Indictment, the evidence and the imminent trial.  The evidence in this case will certainly be lengthy and it will at times be complex.  I would not necessarily describe this case as one of undue complexity on its essential facts but it is undoubtedly a case, so far as the prosecution allegation is concerned, of considerable intricacy and subtlety; not merely because of the extremely convoluted mechanism and timing by which funds were allegedly channelled through various accounts, some of them outside this jurisdiction, but also because of the relationship of numerous and seemingly disparate events.

16. In my judgment, the prosecution could not conceivably do justice to their allegations in explaining to a jury what this particular case is about (and the interests of justice are not all one way) without the sort of chronological schedules and flowcharts with which I am presently concerned.  Whether the jury accept the prosecution allegations will be a matter for them in due course having heard and relied upon the evidence which will be produced through witnesses or agreed in some way.  I am not prepared to have them grasping and groping for what this intricate case is about in a contextual vacuum without the assistance that these schedules and flowcharts will afford.  That such material will assist the jury in understanding the prosecution allegation, is in my view, undeniable and obvious.

17. However, I wish to make clear that Mr Perry must explain to the jury in opening his case the limited use to which this material may be put and I shall reinforce that warning before any evidence is called.  The matter will be revisited with appropriate directions during my summing-up and at any other time I deem it necessary during the currency of the evidence.

18. Accordingly, I can see no objection in principle to detailed chronologies and flow charts being produced or referred to by the prosecution in opening their case to the jury or thereafter during the currency of the proceedings.

Reporting restriction

19. The content of this judgment including my ruling may not be reported until the conclusion of the trial or further Order.