HKSAR v. ASIF AHFAQ MEHMOOD AND OTHERS

HCCC 138/2020

[2021] HKCFI 3820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138OF 2020

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RULING

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1.  All three defendants are charged, together and with others, with Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210. Six other co‑defendants (APs3, 4, 6, 10, 12 and 13) pleaded guilty before the Eastern Magistrates’ Court on 22 June 2020. This application refers to how the evidence relating to these co-defendants should be dealt with in trial (“the co‑defendants”).

2.  The 5^th draft Admitted Facts proposed to be tendered under s65C of the Criminal Procedure Ordinance, Cap 221, includes at paragraph 2 thereof, a reference to the identities of the co-defendants and others uncharged.  Paragraph 4 refers to their guilty pleas and committal for sentence.  Paragraph 5 refers to the Summary of Facts dated 15 June 2020, which formed the basis of their pleas.   Prior to this application, that Summary of Facts had not been checked for accuracy.

3.  Paragraphs 10-20 seek to outline the material events.  Included within that outline, are paragraphs 15-20, which relate to established facts but also to what each of the co‑defendants said on arrest and under interview where applicable.  The issue arises as to whether such evidence is admissible for and/or against the defendants in this case. This would ordinarily be inadmissible as against the defendants in this trial and, as the co‑defendants are not before the court of trial, such evidence is hearsay in any event.

4.  All parties wish this evidence to be before the jury.  Mr Wong, who represents D3, makes this application on behalf of all three defendants.  He relies upon the well‑established principles in R v Myers [1998] AC 124 as followed in HKSAR v Ho Kin Hang Kenneth CACC 152/2005; [2005] HKEC 1553 and HKSAR v Lee Kwan Kong CACC 198/2004; [2006] HKEC 199.  In Ho, the appellant faced a total of 20 charges (1-20) under the Prevention of Bribery Ordinance Cap 201, whilst D2 faced six charges (21-26).  The appellant was found not guilty of charges 1-8, which involved accepting advantages from D2 whilst D2 was acquitted of the mirror charges (21-26).  The remainder of the charges (9-20) as against D1, were different offences alleging the appellant as an agent using documents with intent to deceive his principal.  In finding the appellant guilty of charges 9-20, the trial judge placed no weight upon the evidence of D2 in interview.  A complaint on appeal was that the trial judge should have taken into account those parts of the interviews of D2 which supported the defence of the appellant.  The Court of Appeal relied upon R v Myers and the exception to the rule against hearsay where defendant A makes a voluntary confession against interest which is relevant to the defence of defendant B.  In such circumstances the confession of defendant A is admissible in evidence as to facts in issue and as to A’s credibility.  Even if A does not give evidence (which in this case is not likely) then the defence may cross‑examine the officer to whom the confession is made as to the terms of the confession.  I must note at this stage that there is a huge difference between putting to an officer that A said x, y or z and casting it in stone as an admitted fact under s65C thereby elevating its status to evidence of the truth which cannot be undermined unless very carefully worded.  The facts of Ho supra, did not sit on all fours with Myers as the appellant was not seeking to rely upon parts of a voluntary confession inculpatory of D2.  The appellant sought to rely upon D2’s exculpatory answers.  But the Court took the view that those exculpatory answers must be relevant to the appellant’s defence and therefore should have been taken into consideration.  However, those answers were considered marginal in both force and relevance and this Court will not be quick to extend the principle in Myers on the basis of this authority alone.

5.  In Lee supra, the charge was one of murder on a joint enterprise basis.  The issue before the Court of Appeal was the timing of the final beating of the deceased and who was present.  The version of events given by the various defendants as to their presence and participation at different stages of the material events gave support to the claim by D2 that she had not been present at the final beating.  That version (by D1 and D3), consistent with D2’s defence and contrary to the interest of D1 and D3 was said to be relevant to the credibility of D2’s account.

6.  R v Myers was a different situation to both Ho and Lee.  It was a wholly different situation to the one before the Court now.  Firstly, Myers is not an authority which allows the prosecution to adduce such evidence.  It is not open to them to do so as an exception to the rule against hearsay.  The rule in Myers is available to the defence.  The question of law of before the Court in Myers was:

“In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B’s defence, or does such a confession in all circumstances offend the rule against hearsay?”

7.  In Lee, D1 and D3’s evidence had been admitted into evidence and were before the jury for the purposes of the case against each of them individually.  What was missing was that along with a direction that such evidence could only be used against the maker of the statement and no other co‑defendant, there should have been a direction that a co‑defendant could rely upon it in his or her favour.

8.  What is sought to be relied upon in this case?  These are the facts which are sought to be admitted under s65C in respect of AP3 Wong Wai‑fung Timothy, who is to be called on behalf of the defence by D1:

i)  AP3 was arrested on 15 August 2018.

ii)  AP3 stated he was recruited by “G” to take part in a robbery.

iii)  AP3 was offered a reward of $500,000.

iv)  AP3 was asked to recruit more people.

v)  AP3 visited the location of the robbery and took photographs.

vi)  He was present at the time of the robbery.

9.  There is no question but that i) can be admitted under s65C.  How are ii) – vi) considered to fall under the rule in Myers? What the defence seek to rely upon in their case is the reward received by other co‑defendants vis‑à‑vis their role and to infer from that evidence that the low rewards said to have been offered to D1-D3 reflect their lack of knowledge of the greater scheme.  Item ii) above does not fall into that category.  Item iii) appears to, as do items iv) – vi) all of which appear to be inculpatory and could therefore be said to be admissible under Myers if it can be shown to be to the advantage of the defendants[1].  The difficulty lies however when this VRI is read in full and the accuracy of what is sought to be admitted is tested.  AP3 only admits to carrying out observations of this and other currency exchanges and to taking photographs.  He claims he was present at the scene at the material time to carry out further observations and to check if any police vehicles were present.  He maintains he played no part in the substantive robbery and he received no reward[2].

10.  I can find no admissions of interest against AP3, which can be relied upon by Mr Wong to the advantage of the defendants, and as a result, I do not find the exception to the hearsay rule in Myers engaged.

11.  These are the facts sought to be admitted in respect of AP4 Tang Tsz‑chung:

i)  AP4 was 18 years of age.

ii)  AP4 was recruited to steal a suitcase for $30,000 reward.

iii)  AP4 arrived at the scene at 4.30pm and waited till 7.10pm.

iv)  AP4 was directed by Tsang Hon-hang (AP10) to steal suitcases from the vehicle.

v)  AP4 stole 2 suitcases.

vi)  AP4 was kicked by the driver Fung.

vii)  AP4 dropped one of the suitcases.

viii)  AP4 put the other suitcase in the getaway vehicle and then ran off.

ix)  AP4 was arrested on 15 August 2018.

x)  AP4 made admissions.

xi)  AP4 claimed to have received a reward of between $20,000-30,000.

12.  Item i) and x) are irrelevant.  Items iv), vi), vii) and viii) do not trigger the rule.  Items ii) and xi) may trigger the rule as going to reward.  Items ii), iii) and v) may trigger the rule as going to role.

13.  I cannot find any evidential basis for item ii). His admission on arrest and caution was “I only snatched two suitcases.  I did not hit anyone”.  AP4 clearly incriminates himself in his first VRI.  The second VRI is of no assistance as the majority of his answers are “I am not clear” or similar.  In any event, he makes no positive admissions as to the defendants in this case.  He refers to his role but he does not give any direct assistance as to why he received between $20,000-30,000[3] from Ah Hong (AP10) and elsewhere states he received no offer of reward from the people he dealt with[4].  When pressed on why he should be given the money he said he did not know why[5].  It is interesting to note that AP10 in his VRI states that he received $200,000 but paid AP4 HK$50,000 of that.  This is not admitted by AP4.  It cannot possibly be reduced to an admitted fact that he received $20,000-30,000, as much as both parties might wish to infer it.  Frankly, I am surprised that any counsel having read these interviews in full would think it proper to agree an admitted fact in the terms suggested.  That being the case, it would not be proper to allude to AP4 in the admitted facts save as to his arrest as his actions are only relevant to role which are relevant to reward and the evidence of reward is far from satisfactory.

14.  These are the facts sought to be admitted in respect of AP6 Wong Tsz-kin;

i)  AP6 was arrested on 15 August 2018.

ii)  AP6 made various admissions as to his participation in the robbery.

15.  I fail to see why this AP has been included other than to admit he was arrested and pleaded guilty to this offence.

16.  These are the facts sought to be admitted in respect of AP10 Tsang Hon-hang:

i)  AP10 was 30 years of age.

ii)  AP10 was recruited to rob an underground bank.

iii)  AP10 was to be the driver of the getaway car for a reward of $200,000.

iv)  AP10 arranged for false number plates for the getaway vehicle.

v)  AP10 picked up AP12 & AP13.

vi)  AP 10 waited in the vehicle in Middle Road.

vii)  AP10 saw the suitcases snatched by AP4 and was instructed by AP12 to drive forward.

viii)  AP4 placed a suitcase in the vehicle and AP10 drove off.

ix)  On 9 August 2018 AP10 received $200,000 from AP12.

x)  AP10 was arrested on 27 August 2018.

xi)  AP10 made admissions as to his participation in the robbery.

17.  Items i) and xi) are irrelevant.  I can see no basis in law for the inclusion of items ii) or vi).  Items iii) and ix) may be relevant to reward and items iv), v), vi) and viii) may be relevant to role.

18.  AP10 had four VRIs.  Only the first VRI is relevant to this application.  There is evidence as to items iii) and ix) save that he claimed that he paid Ah Chung $50,000 from that sum and others, which, after exchange he received $130,000[6].

19.  The evidence as to role and reward is relevant to the defendant’s case and may fall under the rule in Myers.  It is therefore amenable to a s65C admission.

20.  These are the facts sought to be admitted in respect of AP12 Cheng Yiu-man:

i)  AP12 was 18 years of age.

ii)  AP12 was recruited by an unidentified person on 7 August 2018.

iii)  AP12 was to find a driver for a vehicle and for ‘snatching the money’.

iv)  AP12 recruited AP10 the driver on 8 August 2018.

v)  AP12 asked AP10 to recruit AP4.

vi)  AP12 met up with AP4, AP10 and AP13 at approximately 5.00pm on 8 August 2018 in Tsim Sha Tsui.

vii)  AP12, AP10, AP4 and AP13 went to Middle Road in a vehicle driven by AP10 and waited there.

viii)  AP12 was in contact with that unidentified person (at ii) above) via WeChat.

ix)  AP12 saw AP4 take two suitcases.

x)  Only 1 suitcase was loaded onto the vehicle.

xi)  AP10 drove away leaving AP4 behind.

xii)  AP12 was given $300,000 by AP13.

xiii)  AP12 passed $200,000 to AP10 as his reward.

xiv)  AP12 left Hong Kong via Lok Ma Chau on 9 August 2018 at 2.00am.

xv)  AP12 was arrested on 13 September 2018.

xvi)  AP12 made admissions of his participation in the robbery.

21.  Items i) and xvi) are irrelevant.  Item xv) may be admitted.  Items ii), viii), ix), x), xi) and xiv) do not fall under the rule.  Items iii) –vii) may be relevant as to role.  Items xii) and xiii) may be relevant as to reward.

22.  There is a stark contradiction in the evidence given by AP12 and AP13 below.  According to AP13, he is a mere bystander who had no knowledge of the robbery until it occurred and who fortuitously went on an all-expenses paid holiday to Macau provided by AP12 and asked AP12 to give him some of his booty once they were in Macau simply because he had none.  AP13 identifies AP12 as Pi Tan.  It was Pi Tan who invited him to be present in the vehicle in Middle Road that day.  AP12 accepted that his nickname was Pi Tan and that he was working for someone on the Mainland.  He understood his boss had an argument with someone over money and wanted to snatch it back by force.  He had recruited AP10 that day.  AP10 was to drive the car.  AP 10 had recruited AP4.  AP4 was to do the snatching.  Both AP12 and AP13 agreed there were 3 people in the vehicle once AP4 had alighted.  AP 10 was always the driver.  AP12 was also in the vehicle and had moved to the front passenger seat but another person (not identified as AP13 but called “a fat guy” by AP12 was sitting in the back whilst AP13 said he was in the back along with AP12 in the front passenger seat.  Given the fact that it is clear on their individual accounts that AP10, AP12 and AP13 were in the car at the relevant time then it is interesting to note that AP13 says AP12 had the bag with the money in but AP12 says AP13 had the money[7] and it was he who gave AP 12 the $300,00[8].  AP12 then describes a trip with AP13 overnight to the mainland in order to launder some of the money (approximately HK$1,000,00) and to test whether there would be any problems.  AP13 makes no mention of this in his VRI.  According to AP12 the laundered money was kept by AP13.  They both then go to Macau.  As for any reward, AP10 was to be paid $200,000.  AP12 was to receive $300,000 but $200,000 of that was to go to AP10.  AP12 makes no mention of any payment to AP4.

23.  It would seem that there would be considerable difficulty drafting admitted facts which directly contradict one another, neither of which could be relied upon as evidence of the truth.  On AP12’s account he received HK$100,000 and AP13 kept all the money at the behest of someone on the Mainland.  On AP13’s account AP12 kept all of the money and gave AP13 HK$90,000.  If the evidence of reward falls away then the evidence of role becomes irrelevant to the defence case and the rule in Myers is not triggered.

24.  These are the facts sought to be admitted in respect of AP13 Chui Chun‑yuen:

i)  AP13 was 31 years of age.

ii)  AP13 was recruited by AP12 on 8 August 2018.

iii)  AP13 boarded a vehicle driven by AP10 at 1.00pm.

iv)  AP13 was driven to the vicinity of Far East Mansion and waited there.

v)  AP12 told AP13 that they must wait until the time was right.

vi)  AP4 was present in the vehicle.

vii)  AP13 got out of the vehicle and went to the 7-11 store on Middle Road to buy a drink.

viii)  On his return to the vehicle AP4 had disappeared.

ix)  AP13 saw AP4 throw a suitcase into the black vehicle which drove off without AP4.

x)  AP13 went to Macau with AP12 later that day and returned to Hong Kong 4 days later.

xi)  AP13 was arrested on 7 June 2019 on entry into Hong Kong from the mainland.

xii)  He made admissions to the police of his participation in the robbery.

25.  The VRI in respect of AP13 is wholly exculpatory.  Items i) and xii) are irrelevant.  Items ii) –x) do not fall under the rule.  There is no evidence as to role or reward.  AP13 maintains that he asked for some of the proceeds in the possession of AP12 whilst they were in Macau but at no stage did he admit any part in the robbery other than sitting in the back of the vehicle and discarding the empty black suitcase at the request of AP12.  I cannot see how admissions other than those as to arrest and plea may be included in any s65C as I presently understand the defence case to be.