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 (NO 2)
AND ISSUES OF HEARSAY

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1.  At the commencement of the trial, counsel for the accused indicated that he objected to the reception into evidence of certain components of the proposed testimony of Lui Mei Yi as appears in her witness statement in the depositions. I heard Counsel for the accused and the prosecution and, on the 2^nd day of the trial before the jury, I made certain enquiries of Counsel. I then held that the impugned passage in the witness statement was admissible. I undertook to publish my reasons later. These are those reasons.

2.  The Accused faces an indictment alleging conspiracy to traffic in dangerous drugs from August to early September 2015. The particulars of the conspiracy alleged in terms of participants is that it is alleged that the accused conspired with Lui Mei Yi and persons unknown.

3.  Lui Mei Yi, the alleged co-conspirator, is for all practical purposes, the be-all and end-all of the prosecution case.  She provided a witness statement on 21 June 2016 and that is part of the depositions.

4.  In her witness statement in the depositions, Ms Lui described how she entered into a conspiracy with the accused to traffic in dangerous drugs.  If the assertions in the witness statement of Lui Mei Yi are to be believed, the initial component of that conspiracy involved her selling drugs at the instance of the accused.  She goes on to say that she also became involved in the receipt of drugs imported from the mainland which appear to have been for the purpose of supplying the retail operation.  In this regard, an additional character came into the picture: Fu Chai.  There are two main features about Fu Chai if the witness statement of Ms Lui is to be believed.  The first is that she says that Fu Chai was the boss of the accused.  The plain implication of what she says is that he was the boss of the accused in the conspiracy in which she and the accused were involved.  The second component was that Fu Chai appeared to be concerned with the importing side of the conspiracy and what appears to be wholesale distribution.  In this regard, at paragraph 8 of her witness statement, she says:

“ 8. About one month after [the accused] and I carried out drug trafficking activities, I received dangerous drugs from [the accused]’s boss nicknamed Fu Chai (I do not know his full name) and deliver dangerous drugs for him. Usually the dangerous drugs received from Fu Chai were in larger amounts. I did it for him three or four times. Usually Fu Chai would contact me in advance when he had dangerous drugs for me to collect. The procedure of collecting the goods was the same every time. As far as I know, Fu Chai arrange someone to source the dangerous drugs, usually K Chai, on the mainland. When a source was found, the dangerous drugs would be packaged.”

The paragraph then goes on to describe the mechanics of the matter.  Counsel for the accused makes the point that nowhere does the accused appear in this relationship.  He says that this could be an independent operation.  However, there is material in the statement of Ms Lui that points to the accused being involved in this side of the business and that therefore the accused, Fu Chai and Ms Lui were in the same conspiracy to traffick.  The rest of her statement — leaving aside the impugned passage (see below) — statement, if it is to be believed, points to a conspiracy which had a number of facets: retail distribution, wholesale distribution and importation from outside Hong Kong.  In answer to questions I posed to counsel for the accused I was informed that this specific passage in paragraph 8 is not objected to.

5.  The objection to the passage which is said to inadmissible hearsay may be seen in paragraph 11 of Ms Lui’s deposition.  That paragraph is as follows:

“ I want to add that on 2015-09-02 when I met Fu Chai in Mong Kok area, Fu Chai that a batch of dangerous drugs K Chai would be delivered from the mainland to Hong Kong on the afternoon of 2015-09-04 and told me to meet him in MTR Sham Shui Po Station at 3 PM that day so that he could arrange me to collect the goods. At that time, he also told me that [the accused] and another girl Ye Mingzhu were responsible for packing the dangerous drugs K chai on the mainland. They used tinfoil and adhesive tape to wrap the bags containing the dangerous drug K chai, and then conceal them in the other goods and deliver them to Hong Kong through transportation companies. At some time after 12 AM on 2015-09-04, I came across Fu Chai at the McDonald’s in Sin Tat Plaza in Mong Kok. He reminded me to take out the bag of dangerous drugs K Chai temporally kept in my home before I went to collect the goods in Nam Cheong Street, Sham Shui Po on the afternoon of 2015-09-04 so that he could give them to the client(s).” (emphasis added)

The underlined part of the passage is that which is the subject of objection.  When I raised the question, Counsel for the accused told me that the underlined passage was the only basis of his objection.

6.  It is conceded by the prosecution that the underlined passage is hearsay because it is relied on by the prosecution not merely because it was said but also because it is true.  However, the prosecution submits that the passage includes acts or declarations in furtherance of the conspiracy.  It would be, so the prosecution submits, therefore admissible as an exception to the hearsay rule.

7.  It is a matter of basic principle that the out of court acts and declarations of a party to a conspiracy or joint enterprise in furtherance of that conspiracy or joint enterprise are capable of being admissible against the person who did the act or made the declaration and also the other members of the joint enterprise.  In order for such evidence to be admissible, there must be reasonable, independent evidence that the latter was a party to a conspiracy or joint enterprise: R v Au Shui-yuen Alick [1993] 2 HKC 219; HKSAR v Vivien Fan (2011) 14 HKCFAR 641.  To be admissible, the impugned hearsay statement must be one made in the course of and in furtherance of the conspiracy.  In that regard, it is inadmissible if it is mere narrative.  In order for evidence of acts and declarations in furtherance of the conspiracy or joint enterprise to be admissible against a person other than the person who did the act or made the declaration, there must be reasonable independent evidence that the latter was a party to a conspiracy or joint enterprise: R v Au Shui-yuen Alick [1993] 2 HKC 219; R v Lai Ka-to, Oscar & Anor CACC 229/1992; HKSAR v Pang Tat-shing [1998] 1 HKC 604; R v Mahutoto [2001] 2 NZLR 115 §34; HKSAR v Cheng Sui Wa [2003] 4 HKC 571; HKSAR v Vivien Fan (2011) 14 HKCFAR 64.  This formulation of the “reasonable evidence test” test is derived from the Australian (R v Ahern (1988) 165 CLR 87, 34 A Crim R 175 (HCA)) and New Zealand approach (R v Buckton [1985] 2 NZLR 257; R v Qiu [2008] 1 NZLR 1).  The adoption of this test is in preference to the requirement for prima facie evidence which was the test expressed in R v Au Shui-yuen Alick (above).  In HKSAR v Vivien Fan, Bokhary PJ indicated that there is probably not a great deal of difference between the two tests.  The sense I get from the authorities is that the requirement is somewhat more than a prima facie test and reflects the fact that the consequence of the application of the reasonable evidence rule is that evidence becomes available to the prosecution which is potentially powerful evidence and implicates the person named even though he or she may not have been present at the time when the impugned declaration or act took place.  The determination may also alter the scope of the conspiracy.  In the instant case there is a very real issue for determination as to whether Fu Chai was a member of the conspiracy with Ms Lui and the accused and Fu Chai’s declaration to Ms Lui in paragraph 11 would substantially widen the nature of the conspiracy and the practical criminal responsibility of the accused in the event that he was convicted.  Against that, there are two factors which possibly point in the other direction: (1) the determination of admissibility usually precedes at the commencement of or in early the early stages of a trial; and (2) the ruling could be revisited later in the trial if the evidence either does not come up to what was expected or is, perhaps, even radically different from that which appeared at the time of the ruling.  I take the concept of reasonable evidence to imply a standard slightly higher than a mere prima facie case.

8.  Reasonable evidence requires evidence of the existence of conspiracy and, in this case, the participation of Fu Chai in the conspiracy: HKSAR v Vivien Fan (above); R v Mahutoto (above) at §34.  That conspiracy may be inferred from the evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement: R v Ahern (1988) 165 CLR 87; R v Au Shui-yuen Alick (above); Oei Hengky Wiryo v HKSAR (No 2) [2007] 10 HKCFAR 98. In other words, the reasonable evidence may come from the acts or declarations of other conspirators but if that is inadmissible hearsay, then such hearsay may not be used against the accused to prove the truth of what was said but rather only to establish that what was said was, indeed, said.  This is the point made by Yang CJ in R v Au Shui-yuen Alick (above) where he made the point that the reasonable evidence may come from the mouth of the co-conspirator who testified for the prosecution.  (The Court of Appeal in R v Au Shui-yuen Alick (above) actually use the prima facie test rather than the reasonable evidence test but that does not affect the application that case to of the present issue.)

9.  Counsel for the accused submitted that there is no reasonable evidence that Fu Chai is in the same conspiracy as the accused.  The case for the prosecution is that there is clear material in the witness statement in the depositions from Ms Lui which clearly points to the active involvement of Fu Chai in the conspiracy in which she and the accused were involved and which is capable of being reasonable evidence of the participation in and involvement of Fu Chai in the conspiracy with the accused and Ms Lui, there is also evidence external to her testimony which is also capable of being reasonable evidence of the participation in and involvement of Fu Chai in that conspiracy.

10.  Starting from the basics, there is reasonable evidence that the accused is in a conspiracy with Ms Lui as to the retail distribution of ketamine.  The real issue is whether there is reasonable evidence to support the proposition that the conspiracy includes Fu Chai as a member of it.  If Fu Chai is not a member of the conspiracy in which Ms Lui says that she and the accused are in then the impugned statement that she attributes to him is inadmissible against the accused.  If Fu Chai is a member of the conspiracy, then I have to consider whether the impugned statement is a declaration in furtherance of the conspiracy or is mere narrative. 

11.  Before determining whether there is reasonable evidence that Fu Chai was in the same conspiracy as Ms Lui and the accused it is right to note the implications of that for the scope of the conspiracy on the premise that Fu Chai is a member.  The obvious implication of this is that the conspiracy is much, much wider than the mere retail distribution of drugs and the storage of drugs to which Ms Lui testifies.  The effect of the inclusion of the acts attributable to Fu Chai would expand the scope of the conspiracy to include acts of cross-border trafficking. 

12.  The prosecution submits that reading the statement as a whole and, in particular, question and answer 10 supports the conclusion that both the accused and Fu Chai are in the conspiracy because both were a party to instructing Ms Lui to pick up drugs on the date that she was arrested.  The prosecution submits that the second non-underlined passage in paragraph 11 (above) also supports this conclusion circumstantially.  The support is circumstantial because it has Fu Chai asking Ms Lui to take something out of the stock of ketamine at her residence for distribution.  She got that stock from the accused to store temporarily.  The inference which is clearly open is that if it is true that Fu Chai said what is attributed to him then his access to the stock of the accused stored with Ms Lui clearly points to him in an agreement with the accused in the trafficking in ketamine. 

13.  In addition, there is evidence external to the statement of Ms Lui which supports the conclusion that Fu Chai is in the same conspiracy as Ms Lui and the accused.  The first item is the fingerprint and a palm print of the accused found on the sticky side of some tape which was used to wrap the dangerous drugs found in a carton delivered to Fu Chai and which Ms Lui picked up on 4 September 2015 at Nam Cheong Street in Sham Shui Po.  A carton was delivered by a driver of a transportation company to that address.  The carton came from the mainland.  Fu Chai had, according to Ms Lui, asked her to take delivery of the carton and pay $120 to the driver.  Fu Chai stood in the shadows.  The specific location of the fingerprints is circumstantial evidence that the accused was involved in the packing operation of drugs delivered across the border to Fu Chai (and the minion Ms Lui).  The obvious conclusion that in this regard the accused was involved in the supply chain feeding the wholesale drugs operation.  It is evidence external to the statement of Ms Lui which confirms and important component of the impugned statement (the accused was involved in packing the ketamine)

14.  Furthermore, the first letter between the accused and Ms Lui that the prosecution proposed to adduce has the accused admitting that he was called by, of all persons, Fu Chai, to “tidy” (or arrange for the tidying of) the residence of Ms Lui shortly after she was arrested.  Precisely why Fu Chai would be asking the accused to undertake that given that it was the accused who placed the drugs there suggests strongly that Fu Chai was concerned about those drugs and that in itself suggests strongly that it was not just the accused but also Fu Chai who had an interest in those drugs.  Otherwise why call the accused?  Why would the accused respond as he said in the letter that he did?  Why would the accused be telling Ms Lui about this?  The connections between these people and circumstances and the actions reported in the letter as those taken circumstantially point to not just a connection between Fu Chai and the accused but that they were in a conspiracy to deal in dangerous drugs and even if that conspiracy had been brought to an end it had to be covered up.  That is a reasonable explanation for the call, the reported response and decision to tell Ms Lui by letter.  While the accused may have another explanation for this letter, it seems to me to be at least capable of being compelling circumstantial support for Fu Chai and the accused being in the same conspiracy as Ms Lui.

15.  Finally, some slight external support comes from the fact that the delivery note which accompanied the carton containing the drugs and which is connected to the carton by having the same serial number affixed to the side of the carton, bears the date 2 September 2015.  That is the date upon which the accused travelled to the mainland from shortly before 1 am to shortly after 2 pm.  While this is a remarkable coincidence the authorship of the delivery note is not the subject of evidence and this is of insufficient evidence, either taken by itself or in combination with other matters and, accordingly, I propose to disregard it.

16.  In my view, there is reasonable evidence to support the conclusion that the accused, Ms Lui and Fu Chai being in the same conspiracy to unlawfully traffic in dangerous drugs.  I rely primarily on the evidence which I have characterised as external to the statement of Ms Lui but I have taken into account the non-hearsay components of that statement.  The authorities suggest that reliance can be placed on the non-hearsay components of the proposed evidence of a co-conspirator.  Although the reference to Fu Chai asking Ms Lui to take something out of the stock of ketamine at her residence for distribution is strictly hearsay I propose to rely on it not for the truth of what was said but for the fact that it was said.  Ms Lui testified that she got that stock from the accused to store temporarily.  The inference which is clearly open is that if it is true that Fu Chai said what is attributed to him then his access to the stock of the accused stored with Ms Lui clearly points to him in an agreement with the accused in the trafficking in ketamine.  Accordingly, that passage is, while hearsay in a general sense is not inadmissible hearsay which is what I take R v Au Shui-yuen Alick (above) and R v Ahern (above) to have in mind.  While, as I say, the dominant focus of my analysis is on the evidence external to the statement the contents of the statement which can be characterised as non-hearsay have influenced my analysis.

17.  Counsel for the accused submits that it is significant that Fu Chai is not on the indictment.  The indictment is presently drawn over as a conspiracy between Ms Lui, the accused and “persons unknown”.  It is not required in law for the person who made the declaration (or did the act) in furtherance of the conspiracy be named in the indictment: R v Devonport & Pirano [1996] 1 Cr App R 221.  Fu Chai might come within the “persons unknown” category.  In any event, the full effect of the depositions and the additional evidence means that the accused and his legal advisers could not have failed to notice that it was said by the prosecution that Fu Chai was a member of the conspiracy. 

18.  Counsel for the accused submits that even if the declaration by Fu Chai is within the scope of the rule, the fact that he cannot be cross-examined about this matter renders that evidence to be inadmissible on the basis that it would create an unjustified risk that there would be an unfair trial.  The courts have recognised that there is a discretion to exclude such evidence on such a basis: HKSAR v Vivien Fan (2011) 14 HKCFAR 641. 

19.  In my judgement, there is reasonable evidence to support the conclusion that Fu Chai and the accused were in the same conspiracy as Ms Lui and that conspiracy is the one which is the subject of the indictment.  In particular, support is to be derived from question and answer 10 of the witness statement of Ms Lui in the depositions.  Some support can also be derived from the admissions made by the accused in the first letter written to Ms Lui while she was in custody.  On that basis, the impugned passage in the statement of Ms Lui is admissible as an act or declaration in furtherance of the conspiracy the subject of the indictment. 

20.  In my opinion, it would have been open to the draughtsman of the indictment to include words to the effect “and a person known as Fu Chai” in the indictment.  This might have been significant if it had not been obvious from the outset that it was the prosecution’s case that Fu Chai was a member of the conspiracy the subject of the indictment.  If I thought there was anything in this point, I would probably adjourn the case to give the prosecutor the opportunity to consider his position with respect to the drafting of the indictment and to give counsel for the accused the opportunity to consider his position.  However, as the reality is that those representing the accused must have appreciated that it was the prosecution case that Fu Chai was a member of the conspiracy I cannot accept that there is any prejudice to the accused in this regard.

21.  In my opinion, the impugned statement in paragraph 11 of the witness statement in the depositions of Ms Lui is not mere narrative.  It is concerned with arrangements to pick up in Hong Kong drugs which had been packed on the mainland and to ensure that Ms Lui understands the arrangements and the participants in the packing operation which were a prelude to its delivery.  In my judgement, this is clearly a statement to advance the interests of the conspiracy.

22.  The only remaining question is whether the inability of counsel for the accused to cross-examine Fu Chai would be a proper basis for the exclusion of the impugned passage.  I rather suspect that if Fu Chai was available, he would most likely be on the current indictment as an accused and if that were the case his availability to the present accused for cross examination would depend on exigencies of a joint trial and it would be by no means a sure thing that he would conduct his case in a manner which would expose him to the cross examination of the present accused.  In my judgement the efficacy of cross-examining Fu Chai is a concept substantially more apparent than real. 

23.  Finally, in making the order that the impugned passage is admissible as an act or declaration in furtherance of the conspiracy, I also make it plain that in the event that the evidence presents at trial in a manner which would mean that the factual underpinnings of, in particular, my determination that there exist reasonable evidence that the impugned passage was an act or declaration in furtherance of the conspiracy, were to fall away then I would be in duty bound to reconsider the ruling.  Subject to that qualification these are my reasons for holding the impugned passage in paragraph 11 of the statement of Ms Lui to be admissible as an act or declaration in furtherance of a conspiracy involving herself, the accused and Fu Chai.