HKSAR v. LAM HING CHIT

HCCC 75/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2017

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RULING ON ADMISSIBILITY

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1.  Lam Hing Chit (“the Accused”) faces an indictment alleging conspiracy to traffic in dangerous drugs contrary to sections 4(1), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134. The particulars allege that between August 2015 and 4 September 2015 (both dates inclusive) in Hong Kong, he conspired with Lui Mei Yi and others unknown to unlawfully traffic in a dangerous drug. The dangerous drug in question is alleged to be ketamine.

2.  On 21 July 2017, the Accused was arraigned on this indictment and pleaded not guilty.

3.  The alleged co-conspirator, Ms Lui Mei Yi, pleaded guilty to a series of quite serious drug offences.  She has been in custody since the date of her arrest: 4 September 2015.  While she was in custody she received a series of letters from the Accused.  Originally, the prosecution sought to adduce 4 of those letters the first being sent in March 2016 and the last on 10 January 2017.  The position now is that prosecution wishes to adduce one of those letters — the letter in March 2016.  It is common ground between the prosecution and the defence that the 2^nd and 4^th letters are not to be adduced.  The Accused through his counsel wishes to adduce the 3^rd letter.  Counsel for the prosecution objects to the reception into evidence of the 3^rd letter.

4.  In order to understand the context in which this objection is taken, it is necessary to understand that one of the principal witnesses that the prosecution proposes to call in this case is Ms Lui Mei Yi — the recipient of the letters.  The prosecution intends to call her as a witness.  She will testify under a partial immunity.  (The reason the immunity only covers some of the criminality does not matter for present purposes.) If what she says is true, she is a co-conspirator with the Accused in a conspiracy to traffic in dangerous drugs.  In this regard, she is provided two statements.  The first statement is her main statement and, if it is to be believed, details her involvement and the involvement of the Accused in the conspiracy the subject of the indictment.  The 2^nd statement concerns the production of the 4 letters.  I will outline in a little more detail the content of these 2 statements.

5.  In determining the admissibility of the letter is the subject of the objection, I am asked to proceed on the following assumptions:

(1)   that Ms Lui will give evidence and testify in accordance with the statements that she has provided to the police;

(2)   the Lam Hing Chit mentioned in her witness statements is the Accused; and

(3)   the prosecution is in a position to prove the letters came from the Accused.

Counsel for the parties have informed me that it is accepted that items (2) and (3) are not in dispute.  No evidence is to be called in the determination of this issue. 

6.  Ms Lui Mei Yi has made two witness statements. The first was taken on 21 June 2016.  At the time, she was in prison.  In that statement, she describes how she met the Accused in around August 2015.  She describes how she came to sell ketamine on behalf of the Accused.  Further, she describes how about a month after she commenced her drug trafficking activities that she received dangerous drugs from a person by the name of Fu Chai who she characterised as the boss of the Accused.  Ms Lui said that she would collect goods from trucks operated by transportation companies in Sham Shui Po.  She would pick up the drugs from the trucks and took them to Fu Chai.  Later, arrangements would be made for her to pick up the drugs to distribute to buyers. After she had delivered the drugs she would be paid money by Fu Chai.  On 2 September 2015 Ms Lui met Fu Chai in Mong Kok and was told that the batch of dangerous drugs would be delivered from the mainland to Hong Kong on 4 September 2015 and arranged to meet him at 3 pm on that day at the Sham Shui Po MTR Station so that he could arrange for her to collect the goods from a lorry driver in Nam Cheong Street in Sham Shui Po.  She told the police that Fu Chai had said to her that the Accused and another girl by the name of Ye Mingzhu were responsible for packing the ketamine on the mainland.  She was asked by Fu Chai to take out one of the bags of ketamine inside the store of drugs given to her by the Accused and kept at her home.  She did this on 4 September 2015.  She put it in her hand bag and went to meet Fu Chai at the MTR Station as arranged. She was given $120 to give to the driver of the lorry. 

7.  It is relevant to note that she says Ms Ye Mingzhu has the nickname “Happy”.

8.  In the statement dated 21 June 2016, Ms Lui also told of an occasion where the Accused asked her to keep some of his things at her home and that she would get $1000 as a reward.  They eventually meet up and when they did the Accused gave her a black plastic bag.  At the time, she did not check what was in the black plastic bag.  She took that bag back to her home in Lam Tin.  She took the bag to her bedroom and discovered that it contained what she believed to be ketamine, an electric scale, a spoon and a transparent plastic bag.  She said that she put these back into the black plastic bag and hid it in her bedroom.

9.  On 4 September 2015, shortly after picking up a package at the request of Fu Chai from a lorry driver in Nam Cheong Street in Sham Shui Po, Ms Lui was arrested by police.  She has been in custody since the date of her arrest.

10.  Following the arrest of Ms Lui, a series of events occurred which culminated in the arrest of the Accused.  These events are:

Date	Event
4/9/15	Lui Mei Yi arrested by police.  She remains in custody thereafter.
29/3/16	The Accused writes first letter to Lui Mei Yi.  At the time of writing the Accused is in custody in connection with other criminal proceedings not related to the present indictment.
19/5/16	the Accused writes 2nd letter to Lui Mei Yi.
21/6/16	Lui Mei Yi gives the first of her witness statements to the police alleging the involvement of the Accused in a conspiracy to traffic in dangerous drugs.
14/7/16	Lui Mei Yi pleads guilty to an indictment and is sentenced to 16 years imprisonment.
27/7/16	The Accused is arrested and charged with conspiracy to traffic in dangerous drugs — this is the subject of the present indictment.
1/8/16	Ye Mingzhu was arrested by police on the basis that she was suspected to have been involved in committing offences together with the Accused and Lui Mei Yi.
6/1/17	The Accused writes 3rd letter to Lui Mei Yi.
10/1/17	The Accused writes 4th letter to Lui Mei Yi.

11.  The present application proceeds upon the basis that the Accused was unaware that Lui Mei Yi had given the police a witness statement.  The committal papers in respect of the current charge were served on him shortly after the 4^th letter was written to Lui Mei Yi on 10 January 2017.  Those papers included the witness statement of 21 June 2016 from Ms Lui.

12.  The first letter written on 29 March 2016 as it appears in the additional evidence bundle is incomplete.  The notice of additional evidence served on the Accused and provided to the court which contains the letters starts in respect of the 1^st letter on the 3^rd page of that letter.  No point is taken by the parties as to that.  The 1^st and 2^nd pages have been located.  There is no intention to adduce them.  At the commencement of the 3^rd page, there is a reference to “Happy” which a jury could conclude was a reference to Ye Mingzhu.  It is to be recalled that Ms Lui asserts in her witness statement that Ye Mingzhu was a member of the conspiracy.  The opening reference is followed up later in the letter with a speculation on the part of the Accused which is to the effect that the Accused and some other persons with whom he was discussing the issue considered that “Happy” was the person most likely to have implicated Ms Lui.  It is asserted in the letter that “Happy” was “caught for half an ounce of K two days prior to it” which a jury might justifiably understand to mean that “Happy” had been arrested for a drugs offence some 2 days before Ms Lui was arrested.  (It is to be recalled at this stage that the Accused had not been arrested in connection with the current proceedings.  As will be seen from the table above, there is an arrest of Ye Mingzhu in connection with the current indictment.  However, it is an Admitted Fact that she was later advised by police that she would not be charged in this regard.  On any view, this could not be regarded as the arrest to which the defendant refers in his letter.)  The speculation on the part of the Accused about who might have implicated Ms Lui is, in essence, the secondary matter in this part of the letter.  The primary matter is that he relates that “Fu Chai” called him on the day of Ms Lui’s arrest “to ask me to help you tidy up the house.” (A jury might understand that to be a reference to Fu Chai who is said by Ms Lui to be a member of the conspiracy and is also said to be the boss of the Accused) asking the Accused to dispose of the drugs which were at the residence of Ms Lui.  The letter continues by the Accused relating that he made a number of attempts to contact people in order to “tidy up” the residence of Ms Lui.  The upshot of the narrative is that he was unsuccessful in getting somebody to do this before the place was “kicked”.  A jury might understand that to mean that this was the time when the police arrived at the residence of Ms Lui.

13.  The first letter written by the Accused continues and talks about the “Customs” trailing and arresting him.  There are then references to the Accused being in what must be Stanley Prison and some of the experiences of the Accused in that place.  The rest of the letter is concerned with the topic of a pen pal for a third person.

14.  The 3^rd letter is dated 6 January 2017.  It refers to the Accused going through the inconvenience of confiscation proceedings.  It is fairly clear that these particular proceedings do not relate to the present indictment.  However, the next part of the letter plainly does.  The Accused speaks of the police laying another charge and it is difficult to imagine that a jury would fail to conclude that this is a clear reference to the present charge faced by the Accused.  The critical passage is: “In the future when I am taken to court, can you be a witness for me??  You know I am innocent.”  Following this passage there is what appears to be a handwritten emoji possibly symbolising tears coming out of one eye.

15.  The prosecution contend that the first letter is an out-of-court statement which is an admission against interest in the sense that it is a declaration that the Accused tried to help cover up the possession of a substantial quantity of ketamine located at the residence of Lui Mei Yi.  What could be interpreted as an admission against interest may derive from a statement other than one made to the police.  An example of this may be seen in HKSAR v Chan Chun Chuen [2013] 6 HKC 437 where the admission against interest attributed to the Accused in that case was to be found in probate proceedings. 

16.  The assertions in the first letter are not a direct admission of complicity.  The case for the prosecution is that the assertions in the letter about a request by “Fu Chai” to make efforts to “tidy” the house of Ms Lui.  These references a request by “Fu Chai” to make efforts to “tidy” the house of Ms Lui are capable of being interpreted by a jury as either:

(1)   an admission that the Accused undertook an act or declaration in furtherance of the conspiracy in which he was still involved in that conspiracy even though the arrest of Ms Lui rendered her out of the conspiracy of which he was still a member; or

(2)   even if the conspiracy had ended by the arrest of Lui Mei Yi, the act of the Accused was in the nature of attempting to pervert the course of public justice to cover up at least her involvement in the possession of a quantity of dangerous drugs at her home.

Whichever view is correct; it would be open to a jury to conclude that the Accused was acting at the behest of Fu Chai who was said by Ms Lui to be a member — indeed her statement says a leading member — of the conspiracy in which the Accused was involved.  It is relevant to the consideration of the jury that Fu Chai has, of all people, chosen the Accused to undertake this task which is also suggestive of the involvement of the Accused in the conspiracy. 

17.  Counsel for the Accused submits that the conspiracy was over at the time of the call by Fu Chai to the Accused and so it follows from that that his conduct could not be an act or declaration in furtherance of a conspiracy in which he was involved.  Further, counsel submits that there is nothing in the language of the relevant passage of the first letter which suggests that the Accused was ever a member of that conspiracy and taking the language of the letter at the highest point does not show his involvement in that conspiracy.

18.  It is accepted by the parties, in principle, that conduct which occurs after a crime has been committed could give rise to an inference that the perpetrator of that conduct was involved in the crime.  Classic examples of this could be flight after a crime or destroying or concealing evidence although, that said, careful directions to the jury would be necessary. Here, the prosecution case is the letter is capable of being an admission to an attempt to cover up a crime or aspects of a crime.  In essence, the position of counsel for the Accused is to say that this is not necessarily so.

19.  It is plain that in order for a jury to come to the conclusion that the conduct that the Accused says that he undertook (that is, calling others at the instance of “Fu Chai” to “tidy” the residence of Ms Lui) is conduct which tends to prove the involvement of the Accused in the conspiracy alleged by Ms Lui, the jury would be required to interpret the language of the letter.  Subject to issues about whether the prejudicial effect of circumstantial evidence is such as to outweigh its probative value so as to render reception in evidence unfair, the admissibility of circumstantial evidence such as that in issue in that case is determined upon the basis that the evidence is capable of permitting a jury to draw an inference adverse to the Accused as to his involvement in the conspiracy averred in the indictment: R v Power (1996) 87 A Crim R 407; R v Ciantar (2006) 167 A Crim R 504; R v Nguyen (2001) 118 A Crim R 479 and Butler v R (2011) 216 A Crim R 215, 234.  While each of these cases is instructive, the point made by Doyle CJ giving the judgment of the South Australian Court of Criminal Appeal R v Power (above) makes the point: ((1996) 87 A Crim R 407, 409)

“ It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected.”

It is open to a jury to undertake the interpretation of the letter to determine if it is an admission of concealing or destroying evidence at the residence of Ms Lui and thus to consider whether this letter is evidence of membership of a conspiracy to traffick in dangerous drugs: HKSAR v Lau Ka Yee (2004) 7 HKCFAR 510.  It is a question of fact for the jury as to whether they are prepared to interpret the letter in a manner which tends to prove the involvement of the Accused in the conspiracy alleged by Ms Lui.  There is ample authority for the proposition that if words attributed to the Accused are ambiguous or equivocal and if the prosecution is not able to resolve that ambiguity to the satisfaction of the jury, any conviction obtained as a result thereof must be quashed: HKSAR v Lau Ka Yee (above). In that case, Mason NPJ dealt with the issue of the reception into evidence of oral statements made by, and conduct of the appellant at a meeting with fellow members of the Catholic Church.  The appellant had been charged with an array of crimes of indecency while he was a priest and the case for the prosecution was that in this meeting he had said things in that meeting which amounted to an unequivocal admission of guilt or were no more than an apology for his criminal conduct.  On appeal the appellant contended that the evidence was ambiguous.  As Mason NPJ observed (2004) 7 HKCFAR 510, §§52 – 53 “in the case of crime, an apology will constitute an admission if it is a statement against the interests of the author of the statement.”  Mason NPJ went on to say that where an admission is ambiguous the jury have the responsibility of resolving the ambiguity if they can.  However, if an equivocal admission is admitted in evidence where the conviction is based on such an admission and there is no other evidence to support the conviction the conviction will be quashed.  Mason NPJ cites R v Chan Yun Hung [1987] 2 HKC 228.  Mason NPJ also recognised that, consistent with SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168, where the admission is equivocal so that its prejudicial effect is out of proportion to its probative value or weight, it will be excluded on the ground that its reception will prejudice a fair trial. 

20.  Counsel for the Accused, on the premise that what the Accused admits that he did (calling others at the instance of Fu Chai to “tidy” the residence of Ms Lui) is not an act or declaration in furtherance of a conspiracy of which he was a member.  He submitted that it is evidence of a crime of attempting to pervert the course of public justice and the Accused is not charged with that crime.  It is well recognised that generally it is inappropriate to place before the jury evidence of a crime other than that in respect of which the Accused is charged.  In HKSAR v Zabed Ali (2003) 6 HKCFAR 192, Li CJ giving the judgment of the Court of Final Appeal, held that in relation to evidence of bad character or misconduct on the part of the Accused which is not the subject of the indictment, the rule is that if the evidence is relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence, it may be admissible, notwithstanding that it also shows propensity.  Li CJ held that if evidence met this test then the court should consider admissibility in the following manner: ((2003) 6 HKCFAR 192, §23)

“(1) The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to and any specific defence raised by the Accused would be taken into account. However, in the well-known words of Lord Sumner in R v Thompson [1918] AC 221, 232:

The prosecution cannot credit the Accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice…”

Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue.

(2) The evidence the admissibility of which is in question should be focused on. 

(3) The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue?

(4) If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, then the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused.  It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law.  If it is not satisfied, the evidence would be ruled inadmissible.  But if in answer to the above questions, it is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.”

In short, the mode of analysis propounded by Li CJ is to first determine the relevance of the evidence proffered by the prosecution and, then determine whether the probative force of that evidence is sufficiently great to make it just to be admitted notwithstanding that it is prejudicial to the Accused.  The plain implication of the judgment of the Court of Final Appeal is that it is of critical importance to identify with precision to what issue the impugned evidence is relevant and how that evidence might go about proving or tending to prove facts germane to that issue.

21.  In HKSAR v Zabed Ali (above), the prosecution’s case was that the defendant committed the murder in the course of a robbery that went wrong, and was based on circumstantial evidence.  This included testimony from X of his conversation with the defendant some 10 days before the murder.  X alleged that the defendant told him that when he was a child, his father had been killed by a political party in Bangladesh, and that he was going to kill someone in revenge and had a fixed target who he did not name.  X also claimed that the defendant later said he was just joking.  The defendant appealed on the basis that X’s evidence should not have been admitted. X’s evidence was not relevant to the defendant’s intent to kill.  The argument in support was that the defendant’s statements that he was going to kill made it more likely that he had the intent to kill and did kill V as charged.  This was held to be mere propensity evidence which must be excluded as inadmissible by the exclusionary rule.  An important feature of HKSAR v Zabed Ali (above) was that the impugned evidence did not, in any relevant sense, require interpretation.  It was not ambiguous.  It was just inadmissible.  In the instant case, the impugned evidence does require interpretation in order to appreciate such probative value as it may have.  In my judgment, at least in principle, the fact that the impugned evidence requires interpretation in order to understand what probative effect is capable of having does not disqualify it from consideration as potentially admissible.  However, the requirement that it be interpreted in order to establish the potential probative effect of the evidence is a relevant factor to be taken into account in determining the admissibility of the evidence in accordance with the principles established by HKSAR v Zabed Ali (above). 

22.  Before making a judgment as to whether the evidence is admissible in accordance with the principles established by HKSAR v Zabed Ali (above), there are three further contentions made by counsel for the Accused in relation to the letter that need to be considered.  Counsel submits that it is also prejudicial to the Accused that the letter associates him with “Happy” who is Ye Mingzhu who is a person associated with drugs and who might be an informant of the police.  Further, the clear implication of some of the letter is that the Accused is in custody and the jury may hold that against the Accused. 

23.  In my judgment, it is difficult to say with certainty that even with the removal of Lui Mei Yi from the conspiracy as a result of her arrest that the conspiracy continued and that the Accused and others remained in that conspiracy.  I think that is likely to be the case but I do not think it is sufficiently certain for me to use it as a basis for a ruling as to admissibility of the first letter.  In any event, it almost certainly does not matter: whether the conduct could be characterised as an act or declaration in furtherance of a conspiracy or not, the conduct still almost certainly involves the commission of a criminal offence.  Nevertheless, I think that the appropriate analysis is to proceed upon the basis that the conspiracy had come to an end.  The consequence of that is that the admissibility must be determined by reference to the scenario that such conspiracy is there was is over and that Fu Chai has asked to the Accused to assist in the cover-up and the Accused has by making the telephone calls that he made assisted in that regard.  The prosecution seeks to use the evidence to establish that by agreeing to undertake this course of conduct an inference is available that the Accused was a member of the criminal conspiracy to traffic in dangerous drugs. The jury might be prepared to conclude to the criminal standard that the readiness of the Accused to assist in the process of “tidying” the residence of Ms Lui might be explained in part by the fact that, according to the statement of Ms Lui, it was he who instigated the placement of dangerous drugs at the residence of Ms Lui.  The contrary contentions would have to be put to the jury: that the Accused was prepared to do what he did to act at the request of Fu Chai even though we had no involvement in the conspiracy other than, perhaps, knowledge of the existence of the conspiracy.  In my judgment, the critical parts of the first letter are well capable of providing some proof that the Accused was a member of the conspiracy and that therefore the first part of the process of reasoning propounded in HKSAR v Zabed Ali (above) has been established.  I do not think that the evidence is, to borrow the phrase of Doyle CJ in R v Power (above) “intractably neutral” — in any event I am far from persuaded that this could necessarily be a basis for exclusion.

24.  The next question is whether even though the evidence is well capable of providing some proof that the Accused was a member of the conspiracy whether the prejudicial effect of this is such as to endanger a fair trial of the Accused.  I propose to deal first with the issue of prejudice arising from the fact that the letter reveals that the Accused was in custody at the time of writing it and may have been guilty of offences other than that faced by him in the current indictment.  That can be cured by redacting that part of the 3^rd page which refers to matters such as the Accused being in Stanley Prison.  Even if that were not so there is nothing inherent in the letter which suggests that the custody was anything other than as a result of an accusation to be determined at a later stage that the Accused had committed a crime and was thus in custody by reason of the accusation rather than a conviction.  However, that does not fall for consideration if there is an appropriate degree of redaction.  So far as the implied connection with Ye Mingzhu (“Happy”) I regard this as essentially trivial and neither by itself nor taken with other matters does it even begin to fall for consideration as having potential prejudice. 

25.  Does the fact that the conduct undertaken by the Accused which he admits render the admission by him in the first letter inadmissible upon the basis that the prejudicial impact of this conduct is such as to render his trial unfair?  This is upon the basis that it reveals criminal conduct of the nature of an attempt to pervert the course of public justice.  Many acts by an accused person following a crime may be criminal (for example, destruction or concealment of evidence and interference with witnesses) and some may not (for example, flight).  Sometimes if the conduct of an accused person after the crime is of great significance a charge of attempting to pervert the course of public justice might be justifiable.  There would be, however, many, many cases where to add such an additional charge would obscure the main issue.  Drafting indictments requires an acute appreciation of the relationship between the forest and the trees.  However, it seems to me that such prejudice is something which can be cured by direction.  In any event, I do not regard the prejudice as so great as to prevent the fair trial of the indictment as laid.

26.  In the result, in my judgment the first letter should be admitted into evidence subject to appropriate arrangements being made for redaction.

27.  I think that I can deal with the issues relating to the reception into evidence of the 3^rd letter with considerably greater brevity.  Objection is taken by the prosecution upon the basis that the letter is self-serving and is not a spontaneous expression in the face of an accusation made to the Accused.  There is some force in what is said on behalf the prosecution because the letter was written many months after the Accused first faced the accusation that he was guilty of a conspiracy to traffic in dangerous drugs with Lui Mei Yi and others.  Nevertheless, it does seem to me that in all the circumstances it would promote and a degree of fairness and balance for the jury to have available to it the 3^rd letter. That fairness and balance is a relevant part of the determination of the admissibility of such evidence is recognised in Attorney General v Li Siu Lam [1989] 2 HKLR 370, 374.  I propose also to order that the 3^rd letter be admitted into evidence subject to appropriate arrangements for redaction of certain parts.