HKSAR v. CHU KAR-KEET

HCCC 319/2018

[2019] HKCFI 2294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 319 OF 2018

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R E A S O N S   F O R   R U L I N G

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1.  On 3 September 2019 I heard submissions from Counsel for the Prosecution and Counsel for the defendant standing trial in relation to two applications. I now hand down my reasons for my rulings.

2.  The prosecution applied to admit eight photographs into evidence that were extracted from a mobile phone seized from this defendant at the time of his arrest.

3.  Both defendants were arrested on 6 July 2017 together in premises in Yuen Long.  Inside the premises the police seized 4,318.59 grams of a solid and a powder containing 3,146.03 grams of cocaine.  The drugs were in plain sight in the premises.  Mr Tang pleaded guilty at the earliest opportunity and was convicted of trafficking in dangerous drugs with the defendant who is now on trial.  Mr Tang has yet to be sentenced.

4.  The police seized two mobile phones from the defendant and a new SIM card.  These exhibits were kept in police custody.  On 14 February 2019 the police obtained a search warrant to inspect the data of these exhibits and subsequently a forensic expert found eight photographs the police found relevant in the defendant’s WhatsApp application.  They were served on the defence on 13 August 2019.

5.  Those eight photographs depict transparent resealable plastic bags of various sizes containing crystalline solids; two of the eight photographs show the same bag of crystalline solid on a red scale weighing 8.89 something presumably grams.  It would appear the contents of the bags are dangerous drugs.

6.  PW12, WDSP18981 of the Cyber Security and Technology Crime Bureau (“CSTCB”) examined the phones and SIM card seized from the defendant.  She retrieved eight photographs from WhatsApp media.  It would appear they are four images duplicated.  It would appear that four were created and the same four were sent.  There appears to be a date and time they were created; sometime before the arrest date of 6 July 2017.

7.  Mr Donald for the prosecution submits these photographs are admissible and the jury can infer that the defendant was in possession of photographs of dangerous drugs in his mobile phone, can infer that he had knowledge that the substances in those bags in the photographs were dangerous drugs and that he was actively involved in drug trafficking.  They are relevant to the charge of trafficking dangerous drugs he faces.  The prosecution does not say that the photographs amount to evidence of uncharged acts.  They seek to argue that the photographs are relevant and are evidence from which the jury can draw the inference that the defendant was part of a joint enterprise to trafficking dangerous drugs.  They do not seek to link the drugs depicted in the photographs to the drugs found at the scene of arrest.

8.  The prosecution agrees that the evidence is only admissible if it is relevant to an issue in this trial.  This is a basic common law principle.  If relevant, the second issue is whether the evidence of these photographs is more prejudicial than probative.  It is another basic common law principle that evidence should not be admitted if its probative weight jeopardises the fairness of the trial or is insufficient to justify the complexity that it will add to the trial.

9.  Mr Shaw for the defence submit that not only is there an issue of undue delay; the photographs were only served on the defence approximately 18 months after arrest and seizure of the phones but that there is no evidence of when they were sent and to whom were they sent.  Moreover, there is no narrative or message attached to or relating to the photographs in the phone.  The defence argues that they are not relevant; they cannot be linked to this case and charge.  The photographs themselves cannot be evidence of Mr Chu trafficking in drugs.

10.  This leads the defence to the second issue that the photographs prejudicial effect outweighs their probative value.  The photographs are not highly probative of the defendant’s guilt in this case.  On their own they do not suggest any criminal acts committed by Mr Chu.

11.  I have compared the photographs found in the mobile phone to the photographs of the exhibits seized on 6 July 2017.  There are no similarities that link those photographs to this case.  For example, the transparent resealable plastic bags are different and of different sizes.  There were no bags of the same approximate size found at the scene of the arrest.  The electronic scale seen in the mobile phone photograph is very different to the two electronic scales found at the scene of the arrest.

12.  In my judgement the photographs on the mobile phone are not relevant enough to the facts and circumstances of this trial.  Even if they were relevant, they are unfairly prejudicial to the defendant, more prejudicial than probative.  The photographs may show the defendant is likely to be a drug trafficker, may have a propensity to commit this offence but they do not point in some way nor can they be linked to the commission of the offence in this trial.  Even if they show him connected to drugs, with nothing more, the prejudicial effect outweighs the probative value of these photos.

13.  It follows that I exclude those eight photographs on the basis that prosecution has failed to prove they are relevant to this charge and that the prejudicial effect of the evidence outweighs its probative value.

14.  I turn to my ruling on the 2^nd application.  Mr Shaw requests a ruling that he be entitled to cross‑examine an upcoming witness, DPC51598, as to what was said by Tang in the course of the arrest and later in his video recorded interview.  At issue is whether Mr Shaw is entitled to cross‑examine the arresting officer of Tang on hearsay evidence; evidence of what Tang said to him under caution.  The prosecution object to such cross‑examination.

15.  Mr Shaw relies on a ruling by Deputy Judge McMahon (as he then was), in HKSAR v Au Yuen Mei [2004] 4 HKC 130.  In that case, a husband and wife were arraigned on an indictment, one pleaded guilty and the other pleaded not guilty.  In the course of the trial the latter accused sought to cross‑examine police officers about the admissions made by the accused to had pleaded guilty. The admission implicated the accused who pleaded guilty and exonerated the accused who pleaded not guilty.

16.  In that ruling, reliance was placed on the decision of the House of Lords in R v Myers [1998] AC 124, where a co‑accused was allowed to cross‑examine police officers to whom that other accused’s confession was made.  The underlying basis for that was to avoid procedural unfairness.  It was held that it was quite wrong that procedural chance, such as whether that co‑accused would not give evidence, could determine whether or not an accused could rely upon another co-accused’s confession.

17.  Mr Donald objects and also pointed out that the co‑accused here, Mr Tang, may have exonerated Mr Chu when he was arrested and during his video recorded interview under caution but when he pleaded guilty at the committal stage, he admitted in the summary of facts read to him that he “now accepts and admits that at the material time, he was together with the 2^nd defendant (Mr Chu) jointly in possession of the cocaine seized for the purposes of unlawful trafficking”.  This contradicts his earlier exoneration of Mr Chu.

18.  If I were to allow cross‑examination of the police officer, in essence to repeat what Mr Tang said about his co‑accused which is hearsay, the prosecution would be unable to admit into evidence that contradiction without Mr Tang giving evidence.

19.  I have referred myself to the ruling of Mr Justice Wright in HKSAR v Toerab Mohamedajoeb and Others, HCCC 411/2009.  He was faced with an identical issue where he was also referred to and considered the authority of R v Myers and the ruling of Deputy Judge McMahon.

20.  In that case there were three accused; the 1^st and 2^nd accused were husband and wife.  The 1^st accused pleaded guilty to the offence.  The 2^nd accused pleaded not guilty and wanted to get into evidence the non‑prejudicial statement made by the 1^st accused which exonerated her.  There was a request by her counsel to cross‑examine the police officer who conducted the non‑prejudicial statement.

21.  Mr Justice Wright considered the fact that the 1^st accused had pleaded guilty to the charge that the 2^nd and 3^rd accused contested.  Like in this trial, the jury in that case were told of this fact by way of admitted facts.  He found that the effect of the 1^st accused’s plea is that he became a competent and compellable witness for the 2^nd accused. That is so according to the provisions of section 57(1) and (2) as read with sections (5) and (6) of the Criminal Procedure Ordinance, Cap 221. He found therefore, there to be no proper basis for allowing cross‑examination of that police officer as to what he was told by the 1^st accused under the rubric of being an exception to the hearsay rule when it was open to the 2^nd accused to call the 1^st accused as a witness to give oral evidence, the best evidence.  He did consider the fact it was a non‑prejudicial statement as opposed to a statement taken under caution but having read the non-prejudicial statement, Mr Justice Wright noted realistically it could not have been regarded as anything other than a confession.

22.  Both the rulings of Deputy Judge McMahon and Mr Justice Wright were considered by the Court of Appeal in HKSAR v Hung Wai Yip and Anor CACC 51/2011. There, the Court of Appeal agreed as was decided in R v Myers, that it was unfair to an accused to not allow cross‑examination of a person to whom an out of court admission had been made when the maker of the admission was not a compellable witness at the behest of a co‑accused in a trial.  However, if the co‑accused becomes compellable as did the co‑accused in Mr Justice Wright’s trial and Mr Tang in this case, then, the Court of Appeal found it was a matter for the accused to determine whether or not to call a co‑accused to give evidence.

23.  The Court of Appeal found it was not permissible to seek to avoid the risks of cross‑examination of the co‑accused by seeking to elicit his exculpatory out‑of‑court statements by cross‑examination of the police officer.  The Court of Appeal reiterated that that evidence was hearsay and under such circumstances was not the subject of any exception to that rule.  It was inadmissible to cross‑examine that police officer in respect of the co-accused’s statement in order to adduce it as evidence of the truth.  Whether or not what Tang says is exculpatory or inculpatory is neither here nor there; it is hearsay either way.

24.  The Court of Final Appeal agreed with that Court of Appeal’s ruling in FAMC 25/2015 on 5 April 2016.  The applicant Hung Wai Yip, sought leave to appeal on the basis of the following question of law, “Should an out of Court confession which exculpates Co-Defendant A made by a former Co‑Defendant B who has previously pleaded guilty, absconded, or for any other reason is not in charge of the jury or tribunal of fact be admissible at the trial of A without calling B.”  Mr Justice Ribeiro PJ recognised and distinguished why in R v Myers the House of Lords allowed cross‑examination of the witness to whom an out of court statement had been made.  In that case, there was no other way of eliciting this evidence because the maker of the statements was not a compellable witness for the co‑defendant.  He agreed with the Court of Appeal’s view that the co‑defendant had pleaded guilty and was not a co‑defendant at the applicant’s trial therefore, he was a compellable witness who was available to be called.

25.  In this case, it is open to Mr Chu to call Mr Tang as a witness.  I have been told that Mr Tang is now not willing to give evidence but that does not detract from the fact that he is a competent and compellable witness.  The procedural chance contemplated by Deputy Judge McMahon, in Au Yuen Mei does not arise in the present case and the decision to call Mr Tang to give evidence lies in the hands of Mr Chu.

26.  Since it is open to the defendant, Mr Chu, to summons his co‑accused as a witness then, I see no justification or indeed, any proper basis for allowing the cross‑examination of the arresting officer on hearsay evidence.  This is especially so when, in the circumstances, there is a contradiction to his evidence that the prosecution should be entitled to explore in cross‑examination if needs be.