HKSAR v. CHAN CHUN CHUEN

HCCC 182/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO HCCC 182 OF 2012

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R U L I N G

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1.  The prosecution seek to adduce as part of their case in the criminal trial certain evidence given or adopted by the defendant in the probate proceedings before Lam J (as he then was). That evidence comprises an edited version of the defendant’s witness statement dated 5 November 2008 in both English and Chinese, summaries of his four subsequent witness statements dated respectively 6 January 2009, 27 March 2009, 11 May 2009 and 11 June 2009, and a summary of the defendant’s evidence in the probate proceedings over the course of five days in June 2009.

2.  Objection to the production of this evidence is taken by the defence on the primary basis that it is inadmissible.  It is argued that the evidence is hearsay and falls to be excluded unless it can be brought within one of the recognised exceptions to the hearsay rule.  The fall-back or secondary position of the defence is that even if the evidence is admissible, I should exclude it in the exercise of my discretion because its prejudicial effect outweighs its probative value and, more generally, because it would be unfair to allow the prosecution to produce it for the purpose for which they wish to use it.

3.  There are two fundamental issues which I must address, as with all evidence whose production in evidence is objected to. They are relevance and admissibility.  In this instance, there is no real issue as to relevance.  Although the evidence in question was adduced during civil proceedings, the issue in those proceedings, and to which the defendant’s own testimony and statements directly went, concerned the genuineness of a document purporting to be the will of the late Nina Kung (or Nina Wang) dated 16 October 2006.  The alleged falsity of that very same document is now at the heart of these criminal proceedings.  What the defendant said about the document in those proceedings is clearly relevant to the issue of the alleged falsity of the document in these proceedings, and Mr Kan for the defence sensibly does not argue otherwise.

4.  Accordingly, the critical issue in this application is the admissibility of the defendant’s evidence including his statements about this matter in the earlier civil proceedings.  That brings me to Mr Kan’s primary objection to its admissibility, which is that it is hearsay.  Although it might seem odd to regard a statement made by the defendant himself on oath in a proceeding other than the one for which he is standing trial concerning the very same subject matter as hearsay evidence, nevertheless I would have thought that technically it is hearsay.  Absent a statutory provision allowing a transcript of a defendant’s evidence on oath in other proceedings to be produced at a criminal trial, a witness would have to be called by the prosecution to report what the defendant had said in those other proceedings.  The question is, therefore, whether the evidence is admissible or inadmissible hearsay.

5.  Mr Kan argues that only out of court statements by a defendant - in the sense of statements made otherwise than in the proceedings in which they are sought to be adduced - in which the defendant incriminates himself are admissible as evidence of the truth of their contents as an exception to the hearsay rule.  He submits that since the defendant’s statements and evidence in the probate proceedings are wholly exculpatory and provide no proof for the prosecution of any facts in issue in this trial, they are pure hearsay and thus inadmissible.  Furthermore, by putting forward the defendant’s exculpatory account so that the prosecution can knock it down as incredible is effectively to put in evidence of propensity, which would also render it inadmissible: see HKSAR v Zabed Ali (2003) 6 HKCFAR 192. 

6.  Mr Perry QC for the prosecution contends that while the defendant's statements and evidence in the probate proceedings do not contain direct admissions to any of the elements of the offences which are alleged against him, they do establish factual matters and circumstances which are relevant to the case advanced by the prosecution.  In other words, while the impugned evidence may not provide direct proof of the facts in issue, it provides material relevant to the facts in issue, which is the essence of circumstantial evidence: see Cornwell v R [2007] 234 ALR 51 at 71. Accordingly, what the defendant had to say in his statements and evidence in the probate proceedings amounts to a “mixed” statement and is thereby admissible as part of the prosecution case.

7.  As for the issue of propensity, Mr Perry says the argument is misconceived.  There is no intention to show the defendant’s bad character or propensity to commit the offences with which he is charged as those terms are properly understood in the case law, nor could that be the necessary implication or effect of introducing the evidence.

8.  I have read the defendant’s edited statement of 5 November 2008 and the summaries of his four subsequent statements, all of which he adopted and confirmed by his evidence in the probate proceedings, a summary of which I have also read.  In that account, the defendant describes, inter alia, how he met the late Nina Kung, how their relationship developed into one of intimacy and trust, how he was able to gain ready and constant access to her office and living quarters, how on 16 October 2006 he came into possession of the impugned documents including the will which is the subject matter of these proceedings, why she left her entire estate to him and how, following her death, he handed over the impugned documents to his solicitor on 5 April 2007. 

9.  In my judgment, the statements and evidence in the probate proceedings, the more relevant effects of which I have briefly summarised, plainly amount to admissions of relevant facts such as possession and use of the impugned document at dates which are identified.  But they also deal with a wealth of background circumstances from which it might be inferred that there was motive (perhaps incentive is a more appropriate word), means and opportunity for the alleged forgery.  If I may borrow the words at first instance of Panckhurst J (at para 27), which were approved by the New Zealand Court of Appeal in R v Bain [2008] NZCA 585 (at para 31):

“The present is necessarily a circumstantial case. Absent an admission to pulling the trigger, the Crown must establish to the required standard from a combination of circumstances the identity of the murderer. In this context admissions which establish factual matters of direct relevance to the circumstantial case are of significant importance. So is an accused’s inability to account for physical evidence found in relation to items which were recently within his possession and control. Admissions made in a circumstantial context will usually not be as far-reaching, nor as clear-cut, as admissions of the other kind. For all that, they are admissions nonetheless, and it is their significance, in a cumulative sense, which may provide proof of the case.”

10.  That statement provides a helpful identification of what is a “mixed” statement in the context of a circumstantial case.  The more frequently quoted analysis of what amounts to a “mixed” statement in a rather different context in R v Garrod [1997] Crim L R 445 at 446, that “where the statement contained an admission of fact which is significant to any issue in the case, meaning capable of adding some degree of weight to the prosecution case on an issue which was relevant to guilt, the statement must be regarded as “mixed” for the purposes of [the rule requiring a direction as to credibility]”, is not inconsistent with the analysis in Bain.

11.  It is true that the prosecution do not obviously accept the circumstances by which the defendant asserts he came into possession of the will and other documents.  However, they are not putting the exculpatory parts of the explanation forward as evidence of its truth but rather that the defendant said what he did in using what the prosecution contend is a false instrument.  The second count alleges that the defendant used a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200.  The particulars of the offence aver that between 4 April 2007 and 3 February 2010, the defendant used an instrument, namely a will of Nina Kung bearing the date 16 October 2006, which was and which he knew or believed to be false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it, to do or not to do some act to his own or another person’s prejudice.  The parameters of the particularised dates are important, for the probate proceedings concluded with the judgment of Lam J on 2 February 2010.  The prosecution rely, therefore, amongst other things, on what the defendant said and did during the probate proceedings as evidence on Count 2 of the use of the alleged false instrument with the requisite intent.

12.  Furthermore, if a defendant has put forward an account which the prosecution contend for various reasons is implausible or incredible, they are surely entitled to put that account forward as evidence which supports the prosecution case that the will is false and that it was made or used with the requisite intent averred in each count.  I cannot accept that the prosecution, by seeking to demonstrate that the exculpatory part of a “mixed” statement is implausible or incredible, have effectively created evidence of the defendant’s propensity in the sense in which that term is used in the authorities.

13.  In my judgment, the evidence which the prosecution seek to produce is not inadmissible hearsay.  They are entitled to lead it as part of their case for the reasons I have stated.

14.  That leaves the question of my discretion to exclude otherwise admissible evidence.  Mr Kan complains that this evidence is more prejudicial than probative.  I have already dealt with the probative aspects of the evidence.  As for possible prejudice, the evidence is, as Mr Kan submits, exculpatory in the sense that the defendant does not admit the forgery or falsity of the will in question.  The defendant’s position throughout has been that the will is genuine. 

15.  The complaint, therefore, really is that, by seeking to put the defendant’s explanation in the probate proceedings into evidence so that they can then knock it down, the prosecution are making prejudicial use of evidence which does not in reality prove any fact in issue. Furthermore, if there is any probative quality to the evidence, it is argued that there is other evidence for the prosecution which is undisputed and which can prove any of the matters relied on by the prosecution in the defendant’s statements and evidence before the probate court.

16.  As I have said, the defendant’s statements and evidence in the probate proceedings are potentially probative of facts relevant to this circumstantial case.  Accordingly, they amount to “mixed” statements by the defendant.  Whether a statement is “mixed” or not does not depend upon the accident of circumstance of what other evidence is available to the prosecution, but upon an examination of the statement itself: see Western v Director of Public Prosecutions [1997] 1 Cr App R 474 at 484.  In my view, the probative value of this evidence is not outweighed by any prejudicial effect.

17.  The prosecution are entitled to make use of this evidence in proof of their case and I see no unfairness in their doing so. Accordingly, I see no reason to exercise my discretion to exclude this evidence.