HKSAR v. LI CHEUNG YIN

HCCC 217/2017

[2018] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2017

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RULING

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1.  The defendant is charged with trafficking in a dangerous drug. He was stopped on the street one night, and found to have quantities of ice, cocaine, and nitemazepam on him, as well as just over $7,000 in cash. When he was interviewed, he claimed that the drugs were for his own consumption. In the trial, evidence has been given by a police officer that the street value of the drugs was over $8,500, and a doctor has given evidence of the very high number of doses which the drugs in the quantities found on the defendant could have provided, not just to a light user of the drugs, but to a heavy user as well.

2.  When the defendant was searched, three mobile phones were found on him.  One of them had a message on it.  The message had been sent a little over two days before the defendant was arrested.  The message was in Chinese, and once translated into English, it read:

“ Senior apprentice. I am number. Do you have one piece of chu? I can only make payment until 11.00. Is that OK?”

Counsel agreed that the Chinese characters which represented the words “senior apprentice” meant that the person receiving the message was senior to the person sending it, and a police officer has given evidence that in her expert opinion the Chinese characters which represented the words “one piece” and “chu” have a special meaning in the drugs sub-culture in Hong Kong, and mean 0.2 – 0.7 grammes of ice.  The police officer who gave this evidence was asked by me whether this message was sent by this mobile phone or to it, but she could not say.

3.  Just before closing his case, Mr Steve Chui for the prosecution gave the jury a set of admitted facts.  They revealed that it had been agreed between the prosecution and the defence that this message had been sent to the mobile phone found on the defendant.  They were therefore not his words, but the words of someone else.  The prosecution’s case is that this is evidence from which, along with the other evidence in the case, the jury could infer that the defendant had been trafficking in the drugs found on him, since the jury could infer from the message that he was known or believed to be someone from whom drugs could be obtained.

4.  After the prosecution closed its case, and before the defence case was opened, I raised with counsel the question whether this evidence was admissible in view of the fact that the message was an incoming one.  Might the evidence not be hearsay?  The authorities do not speak with one voice.  Evidence of this kind has been held to be admissible in Australia (see R v Firman (1989) 46 A Crim R 150) but not in the UK (see R v Kearley [1992] 2 AC 228).  The rationale for excluding the evidence was indeed that it was caught by the rule against hearsay. 

5.  In Kearley, the police raided the defendant’s flat and found a small quantity of drugs.  The defendant was arrested and subsequently charged with possessing controlled drugs with intent to supply.  Following the defendant’s arrest, the police remained in his flat for several hours.  During that time, there were numerous telephone calls to the phone in the flat, and many people visited the flat.  Most of the callers and visitors asked for the defendant, and from what they said, it was plain that they wanted to buy drugs.  The issue for the court was whether the evidence of the police officers about what the callers and visitors had said had been admissible to prove that the defendant had been in possession of the drugs found in his flat.  By a majority of 3:2, the House of Lords held that this evidence should have been excluded as a result of the rule against hearsay. 

6.  With all members of the House of Lords giving speeches, it is a little difficult to distill a single approach, but what the majority held was that, although the evidence of the police officers was compelling evidence that the callers and visitors believed that they could buy drugs from the defendant, their belief was not the issue in the case.  The issue in the case was whether the defendant was in fact intending to supply the drugs, and to infer that from the callers’ and visitors’ belief that they could buy drugs from him required the jury to accept the truth of an implied assertion, namely that the defendant had supplied drugs in the past.  That was because it was only if the defendant had supplied drugs in the past that the jury could infer that that he was ready to supply drugs at the time of the raid.  It was the prosecution’s reliance on the truth of that implied assertion which triggered the rule against hearsay.

7.  The decision in Kearley has been heavily criticized.  The callers and visitors did not intend what they said to be an assertion of any kind, and in view of the number of them, there was little chance, if any, that they had concocted what they said.  The correctness of Kearley has also been questioned in Hong Kong.  In Oei Hengky Wiryo v HKSAR (2007) 10 HKCFAR 98, the decision in Kearley was described by McHugh NPJ in the Court of Final Appeal at [51] as seemingly “wrong in principle”.

8.  For my part, I can understand where those who criticize the decision in Kearley are coming from.  When you have a large number of people, apparently unconnected with one another, calling at premises in order to buy drugs, it is tempting to say that that can only be because everyone knew that this was somewhere where drugs could be obtained.  But I found the logic of the leading speech of those in the majority in Kearley—that of Lord Oliver of Aylmerton—compelling, and had I had to decide the matter for myself, I may well have found myself siding with the majority.

9.  But that is not the end of the story.  The Court of Appeal in Hong Kong has considered itself to be bound by Kearley.  In R v Ng Kin Yee [1994] 2 HKCLR 1, it held, on the basis of Kearley, that evidence about calls on a raceday to a bookmaker’s telephone purporting to place bets was not admissible to prove that the premises were bookmaker’s premises.  On the issue whether it was bound by Kearley, the court said at p 8:

“ Although the decision in Kearley, being on a matter which is governed by the common law, is not ipso facto binding on the courts of Hong Kong, it is not one in a field of law in which the circumstances of Hong Kong or its inhabitants make it inappropriate that the common law in that field should develop on the same lines in Hong Kong as in England. The Privy Council is therefore unlikely to diverge from a decision which its members have reached in their alternative capacity in the House of Lords. That being so, we have reluctantly come to the conclusion that we are bound by Kearley.”

10.  I acknowledge that these comments were made before the resumption of sovereignty over Hong Kong by the Peoples’ Republic of China, but if one substitutes the Court of Final Appeal for the Privy Council, we are where we are.  As it is, although McHugh NPJ doubted the correctness of Kearley, the Court of Final Appeal in Oei Hengky Wiryo expressly reserved consideration of the question whether Kearley had been rightly decided, and in the circumstances I simply cannot say whether it is likely or unlikely that the Court of Final Appeal would diverge from Kearley when confronted with the issue head on in the future.  In the circumstances, I regard myself as bound to follow Ng Kin Yee, and therefore to follow Kearley.

11.  Having said that, the approach in Kearley was reflected in a recent judgment of the Court of Appeal in HKSAR v Yan Sin Man [2018] HKCA 6 which Mr Victor Ho for the defendant drew to my attention this morning.  In that case a notebook and a mobile phone were found in a bag which the defendant had with her as she was about to go into a room to which she had access and in which various drugs had been found.  The notebook was found to contain various entries, and the mobile phone various photographs, of the prices for various kinds of drugs, which happened to be the same kinds of drugs found in the room, as well as details of transactions relating to them.  The Court of Appeal proceeded on the assumption at [62] that if the defendant had not been responsible for “making” these “records”, they were not admissible for the purpose of establishing the truth of any implied assertions contained in them.  That mirrors exactly the approach adopted in Kearley.

12.  Mr Chui originally accepted that the message on the mobile phone was caught by the rule against hearsay, but he subsequently withdrew that concession on the footing that he was not relying on the message to establish the truth of its contents.  However, in the light of the way in which the prosecution’s case is being put (which I have set out earlier), that is exactly what the prosecution is doing.

13.  The next question, though, is whether the evidence might be admissible under one of the exceptions to the rule against hearsay.  One of those exceptions, of course, is the res gestae doctrine.  The House of Lords in Kearley did not address the question whether in appropriate circumstances such evidence might be admissible as part of the res gestae, and Mr Chui contends that it is.

14.  We have in recent years moved away from the requirement that a hearsay statement has to be contemporaneous with the act which is sought to be proved for the statement to be admissible under the res gestae doctrine.  The focus is now on the spontaneity and reliability of the statement, whether the possibility of it having been concocted can be excluded, and whether there is a logical connection between the statement and the act which is sought to be proved so as to make the statement relevant to, and probative of, that act.

15.  There is no basis for thinking that the message on the defendant’s mobile phone was anything other than spontaneous, and no basis for thinking that it might have been concocted.  The real question is whether the message can be regarded as reliable, and if so, whether it could be inferred—from the fact that someone who knew or believed, two days before the defendant was found in possession of ice, that the defendant was someone from whom ice could be obtained—that the defendant was, on the day of his arrest, trafficking in the ice found on him.  In the context of this case, the defendant would have been trafficking in the ice found on him if it could be inferred that he was intending to sell the ice, perhaps to end users, or to pass it on to someone further along in the distribution chain.

16.  I do not believe that the message is capable of being regarded as sufficiently reliable to satisfy the res gestae doctrine.  We do not know anything about the person who sent the message, or what made him (or her) think that they might be able to get ice from the defendant.  Was that something that they knew themselves?  Or was it something they were told?  And if the latter, we do not know who the person who told them that was, or what the source of their information was.  Nor do we know whether the defendant was the intended recipient of the message.  Indeed, Mr Ho, while reluctant to reveal what the defendant’s case would be, told me that there was an issue about the ownership of the mobile phone, and therefore an issue about who the intended recipient of the message was.  So there are a few possible explanations for the message to have been sent to a mobile phone in the defendant’s possession other than that the defendant was believed to be someone from whom ice could be obtained.  And even if the defendant was someone from whom it was believed that ice could be obtained, there are possible explanations for that belief other than that the defendant was in fact someone from whom ice could be obtained.  The position might have been different if there had been a number of messages of the same kind from apparently unconnected people, but for the reasons I have given, I rule that the evidence of this one message on the mobile phone found in the defendant’s possession is inadmissible.

17.  The question then arises about what to do now. The jury has already heard the evidence.  The options are to direct them to ignore the evidence and not to hold any of it against the defendant.  Some people might think that that would be asking the jury to perform mental gymnastics of a kind which would be highly difficult for them to do.  The other option is to discharge the jury and to order the defendant to be retried.  The prosecution ask me not to take that course, but to give the jury a strong direction to ignore the evidence. 

18.  If the defence had asked me to discharge the jury and order a retrial, I would have been prepared to do that.  However, having considered the matter carefully, and having taken the defendant’s instructions, Mr Ho is content with a direction to the jury to ignore all the evidence relating to the message.  That stance is adopted, no doubt, for tactical reasons, and it would not be right for me to adopt a course of action which deprives the defence of any tactical advantage which has accrued to the defence as a result of the evidence having been admitted erroneously.  I shall therefore direct the jury to ignore the evidence about the message in its entirety, ie not just the message itself, but also what the admitted facts said about when the message was sent and what it said, and the evidence about what certain characters in the message meant.

[The defendant was subsequently convicted and sentenced to 7 years’ imprisonment.]