HKSAR v. NGAI HON KWONG

HCCC 78/2016

[2019] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

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REASONS FOR RULINGS
ON
(1 )Application to withdraw
admissions made under section 65C of
the Criminal Procedure Ordinance, Cap 221
(2) Application to exclude evidence in the records
of interview made by the accused on the basis
of the exercise of the discretion of the court
(3) Application to reopen the prosecution case to
adduce evidence in rebuttal of the defence case

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INTRODUCTION

1.  At various stages during the course of this trial I gave rulings as to aspects of the conduct of the trial.  In respect of three of these rulings, I undertook to publish my reasons for them in due course. The rulings concerned:

  (1)  an application by the accused made before the commencement of the trial to withdraw the admissions made by counsel then representing the accused at a previous trial in respect of this matter;

  (2)  an application by the accused made before the commencement of the trial to exclude aspects of the video recorded interviews of the accused on the basis that the interviews had been unlawfully tampered with by the police or those responsible for the prosecution of the accused; and

  (3)  an application by the prosecution during the course of the trial to reopen the prosecution case to adduce evidence in rebuttal of the defence case.

APPLICATION TO WITHDRAW SECTION 65C ADMISSIONS

2.  Prior to the arraignment of Ngai Hon Kwong, on 11 December 2018 a pre-trial hearing was undertaken.  In the course of that hearing, it became apparent that the accused did not wish to be bound by the admissions which were made under section 65C of the Criminal Procedure Ordinance, Cap 221 at his previous trial.  The present trial is a retrial.  At a previous trial before Deputy Judge Stuart-Moore and a jury, the accused was convicted of murder.  He appealed to the Court of Appeal.  That Court ordered that his conviction be quashed and that the accused be retried on a fresh indictment.

3.  At the pre-trial hearing to which I have just made reference, the accused also asserted that there were deliberate omissions and exclusions from the video recorded interviews which the prosecution intends to present to the jury in this trial.  The accused asserted that this was unfair to him and on that basis I ordered that a preliminary enquiry be conducted following the arraignment of the accused to ascertain whether there was a basis upon which one or more of the video recorded interviews might be excluded because to present it to the jury might be unfair to the accused.  As will shortly appear, the voluntary nature of the video recorded interviews is not a matter in contention.

Procedural history

4.  In order to understand the context in which this application is made it is necessary to note aspects of the procedural history of this matter.

5.  The accused was arraigned on a charge of murder and tried before Deputy Judge Stuart-Moore and a jury.  On 28 October 2014, the accused was convicted and sentenced to imprisonment for life.

6.  The accused appealed against his conviction and on 5 February 2016, the appeal was allowed by the Court of Appeal (Lunn VP, Macrae and McWalters JJA) and the conviction quashed but an order was made by the court that the accused be retried on a fresh indictment.

7.  On 17 December 2018, the accused was arraigned on the fresh indictment.

The application:  Admissions pursuant to section 65C of the Criminal Procedure Ordinance

8.  It is pertinent to note that the accused is not represented at this trial.  At various stages those Judges of this Court hearing preliminary matters concerned with the management of this case have in strong terms urged the accused to obtain representation.  On 11 December 2018, that advice was repeated by this Court in strong terms but it is apparent that the accused is determined to represent himself.  For reasons which will become apparent shortly, it is equally pertinent to note that at his first trial before Deputy Judge Stuart-Moore and a jury, the accused was represented by Ms Monica Chow, Barrister at Law.

9.  At the trial before Deputy Judge Stuart-Moore, there are three documents headed as admissions made under section 65C of the Criminal Procedure Ordinance.  Those documents are signed by prosecuting counsel on that occasion and defence counsel then acting on behalf of the accused on the instructions of the Director of Legal Aid.  On those same days, the transcript of those proceedings reveals that the terms of those documents were read in open court and were orally translated into Chinese.  It is to be noted from the transcript that, according to Ms Chow, the third of these documents originated from the defence.

10.  In these proceedings, the accused has asserted that he did not make these admissions and the documents signed by Ms Chow and the prosecutor and read in open court as I have described were not made with his authority.

11.  I called for a transcript of the presentation of the Admitted Facts at the previous trial.  What is apparent from that transcript is that the Admitted Facts were read out in open court. Deputy Judge Stuart-Moore did not specifically ask the accused whether he admitted the facts which were read out. Nevertheless, the trial proceeded upon the basis that these facts had been admitted.  The other thing that became obvious from the transcript was that one set of Admitted Facts had actually been made on behalf of the accused.  No complaint appears to have been made on appeal.

12.  No evidence was called in the determination of the issues relevant to this topic.  I was, nevertheless, informed that the prosecution had arranged for Ms Chow and other members of the former legal team of the accused to testify had that become necessary.  For reasons which will shortly become apparent, that became unnecessary.

Principles

13.  Section 65C of the Criminal Procedure Ordinance provides a means whereby admissions in criminal proceedings may be made by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.  Section 65C(2) sets out the conditions for reception as follows:

“ (2) An admission under this section—

(a) may be made before or during the proceedings;

(b) if made otherwise than in court, shall be in writing;

(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;

(d) if made on behalf of a defendant who is an individual,shall be made by his counsel or solicitor;

(e) if made at any stage before the trial by a defendant who is an individual, must be approved by his counsel or solicitor (whether at the time it was made or subsequently) before or during the proceedings in question;

(f)     may be made in either official language.”

If these requirements are met, the admissions are to be conclusive evidence in those proceedings of the fact admitted.  Further, section 65C(3) also provides that an admission made under this section “shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).”

14.  Section 65C(4) provides a means by which any such admission may be withdrawn.  The sub-section provides:

“ An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.”

As will shortly appear, it was not necessary to consider the nature and scope of the discretion reposed by section 65C(4) and what factors might inform the exercise of that discretion.

Disposition

15.  The procedure that was adopted was for the Court to go through each of the assertions of fact in the Admitted Facts made at the previous trialto ascertain the position of the accused as to those facts.  It became apparent in this process that the accused did not understand the nature and scope of some of the admissions.  Further, for other admissions contained in the Admitted Facts he accepted that these facts were true.  An example of this relates to those facts which were concerned with the medical treatment of the deceased and the findings of doctors at the accident and emergency facilities where the deceased was initially taken to following the fire.  Accordingly, the accused indicated that he was content for this part of the Admitted Facts to go forward.  There were other facts in this same category.

16.  There were two categories of facts in the Admitted Facts which it became clear that the accused did not fully understand the limited nature and scope of the admissions.  The first category concerned the taking of photographs at various places germane to the incident which gave rise to the death of the deceased.  Part of the case for the prosecution which, I understand, is accepted by the accused is that he had used the drug commonly known as ice and some of the photographs depict paraphernalia associated with the consumption of ice.  The first point to note in this context is that the terms of the Admitted Facts in relation to the taking of photographs was that the relevant photographs which are to be placed in a Jury Bundle were simply taken at a particular place at a particular time by a particular officer.  As it turned out, that fact was not disputed by the accused.  His concern is to show that some of the photographs are not to be relied on because they are, in effect, staged.  In other words, the problem is not the fact of the photograph being taken at the place and time it was taken but rather what was presented in the photograph.  Once it was made clear to the accused that it would be open to him to make his argument that some of the photographs were, in a sense, staged or, perhaps did not accurately depict how things were at the scene at the time of the fire then it became clear that he had no objection to the Admitted Facts relating to the taking of the photographs in their specific terms.  Accordingly, the accused indicated to the Court that he was content for this category of Admitted Facts to be placed before the jury.

17.  The next category of Admitted Facts about which the accused was concerned was the assertion that three of the video recorded interviews were taken voluntarily.  Again, it became apparent that the accused did not fully understand the limited nature and scope of the facts asserted and, more pertinently, the limitation of the scope of that which was asserted.  This was important because a central contention of the accused is that the interviews, while voluntary, were improperly altered and that what the jury would see was not an accurate representation of what had been recorded.  The accused asserted that certain parts had been deliberately omitted and other matters such as dates and times had been improperly altered.  He wished to raise these matters as part of his case before the jury.  On any reading of the Admitted Facts as they are framed, that course would still be open to him and once that was made plain to the accused, he indicated that he was content for this category of Admitted Facts to go forward.

18.  In the course of enquiry by the Court, it was plain that what the accused was really concerned about was whether the Admitted Facts would hamper the presentation by him of certain points that he wished to put before the jury. In short, the terms and scope of the Admitted Facts did not have that effect.  It became apparent that this was the real concern of the accused as opposed to an assertion that counsel for the accused made the admissions without authority.  In the result, it became clear after going through each of the facts asserted in the Admitted Facts that the accused was content for those to go before the jury in their present form.  It was clear that his contention had nothing to do with an issue of whether or not the Admitted Facts were made without his authority.  In any event, any fair reading of the transcript of the previous trial relating to the presentation before the jury of the Admitted Facts showed no suggestion that counsel had no authority and indeed, as it turned out one set of Admitted Facts had been made on behalf of the accused.

Conclusion

19.  After a series of exchanges with the accused, I was satisfied there was no basis to exercise a discretion to permit the Admitted Facts to be withdrawn.  In the premises, the Admitted Facts presented at the previous trial may be placed before the jury. So as to avoid possible prejudice which might be occasioned were the jury in the present trial to discover that the accused was previously convicted of the charge of murder, I directed the prosecutor when referring to the Admitted Facts and presenting those to the jury to proceed upon the basis that the documents were simply made “in an earlier proceeding”.

ISSUES RELATING TO THE AUTHENTICITY OF THE VIDEO RECORDED INTERVIEWS

20.  The issues in relation to this matter must be understood against the background that one component of the Admitted Facts was admissions that certain of the video recorded interviews were voluntary.  (There is a further post record of the response of the accused to his arrest which will be presented.  No assertion has been made that this is not voluntary and should that issue arise during the course of the trial it will be ruled upon.  I apprehend that the accused does not challenge the voluntariness of this post record and it is, in any event, not significantly harmful to his case.  It is simply that there is no specific admission in the current set of Admitted Facts as to the voluntariness of the post record.)

21.  The essence of the assertions made by the accused in connection with the video recorded interviews is that aspects of them have been improperly altered.  In view of the nature of the assertions of the accused,I proceeded upon the basis that it was conceivable that if this was true that there might be a basis for excluding one or more of the video recorded interviews or possibly excluding part of one or more of those interviews.  The basis for exclusion could conceivably have been that the exclusion made some part or possibly all of one or more of the interviews unfair if there were the kinds of improper alteration as asserted by the accused.  That there is a jurisdiction in the court to exclude some or all of the admissions against interest made by the accused that the prosecution wished to present is a well-known component of the laws of evidence: R v Sang [1980] AC 402; R v Lai Kin Ming [1984] HKC 1; R v Lam Yip Ying [1984] HKLR 419; SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168.

22.  Three issues arose for consideration in this case.  These were:

  (1)  the identification of those parts of the video recorded interviews which had been tampered with;

  (2)  the identification of what had been edited out of the video recorded interviews; and

  (3)  whether unfairness to the accused was revealed by either (1) or (2) (or both) and whether the unfairness was of a nature which would have justified the exclusion of some or all of the video recorded interviews.

23.  On any view, almost all of the time spent on this topic was attempting to identify with a reasonable degree of precision the factual basis of the assertions.  The initial position of the accused was to make very generalised assertions and, making full allowance for facts such as the length of time which is passed since those video recorded interviews were made and the difficulty of identifying not so much what is there but what is not there, the position of the accused shifted ground on numerous occasions.  At one stage the accused asserted that that which was to be played in the present trial was not that which was played in the previous trial.  As a result of this assertion I ordered a copy of the audio recording of the trial in order to assess what, if any, relevance this had on the issues that I was being asked to consider. The accused asserted that the police or the prosecution (or both) had tampered with the evidence which was presented at the earlier trial.  That was a matter of serious concern and I noted that the master discs of the video recorded interviews which were presented at the previous trial were kept by the court although court records reveal that a request was made by the Department of Justice to obtain these to test their authenticity.  Andrew Chan J ordered that the master discs and some other evidence be written at least into the custody of the Department of Justice and the discs were amongst other evidence which was picked up by a police officer.  All of this was recorded in the correspondence file pertaining to this case.

24.  At one stage the accused asserted that there was a video recorded interview which was not to be played at the present trial which had been played in the previous trial.  I undertook the task of starting to review the audio recording of the previous trial to ascertain what had been presented. The notes of the learned trial Judge who conducted the previous trial were not available and had they been available the process may have been simpler. In the event, although I commenced listening to the relevant passages of the audio recording, for reasons which will shortly become apparent it was not necessary to conclude that task.

25.  It became obvious during the course of my trying to ascertain from the accused what the problems with the video recorded interviews were that one possible solution to this was to play the video recorded interviews.  I also invited the prosecution to consider calling the officer who have picked up the master discs of those interviews and those who have handled the discs and, indeed, an officer who examined them. This suggestion was made shortly before the mid-morning break on 18 December 2018.  When the court resumed following that break, the prosecutor indicated that he proposed to call such witnesses as well as to play the relevant master discs.  I indicated to the accused that this would be possibly relevant to a determination of whether the discs had been tampered with and whether what was to be played at this trial was somehow different to that which had been played at the previous trial.  (At this stage, I had yet to determine the relevance of the last issue.)  When I informed the accused that this is what I proposed to permit he told the court that he now had no challenge to the authenticity of the recordings.  As the accused had become somewhat emotional over the matter immediately preceding the mid-morning break (which was taken slightly early because of that circumstance) I asked the accused to confirm that this was indeed his position.  He confirmed that it was and that his position was that the video recorded interviews could now be played at the trial.

26.  On that premise, it appeared to me that there was no factual basis for me to exercise the discretion reposed in the court to exclude some or all of an otherwise voluntary admission.  I ordered that the video recorded interviews that the prosecutor intended to play could be played before the jury.

APPLICATION BY PROSECUTION TO REOPEN ITS CASE

27.  The context of this application was the constant theme on the part of the accused manifested in cross examination of prosecution witnesses and during the presentation of the testimony of the accused and the defence case in general that the police to a large extent and the prosecuting authorities to a lesser extent conducted their case with perfidious dishonesty and engaged in shameless manipulation of facts and evidence.  A feature of that theme was the testimony and the treatment of the testimony of the exhibits officer who was present at the apartment where the fire occurred shortly after the police arrived following the death of the victim and, most pertinently for this application when the police continued their investigation the following day.

28.  This officer was engaged in, amongst other activities, assisting the scientific officer when he examined the scene the day after the fire.  There was a long and detailed series of allegations of dishonesty and incompetence on the part of this officer in his handling of the exhibits designated by the scientific officer for retention and more generally in his conduct of the examination of and retention of pertinent exhibits.  Obviously,one of the critical things that the police in general and this officer in particular were looking for was evidence of quite how what must have been a large quantity of accelerant (even at an early stage the prime suspect in that regard was isopropyl alcohol) could have been poured on the victim.  Pausing there,at the time of the investigation the subject of this ruling, the victim was still alive and in the intensive care unit of the Prince of Wales Hospital.  He died about a week later.

29.  Given that the accelerant was likely to be a liquid, a concern of the investigation was containers which might have contained the accelerant. A police officer on the day of the fire had noticed a crushed 1.25 L Coke bottle on the floor and he picked that up and placed it on some furniture at the scene.  In the result, the exhibits officer found a small amount of liquid in this empty crushed bottle and extracted it into another bottle.  Although not strictly relevant for present purposes, the contents of that smaller bottle were examined and isopropyl alcohol was found.  The crushed Coca-Cola bottle was also seized by the exhibits officer. There was another Coca-Cola bottle visible in photographs of the kitchen of the premises.  It appears that this was never seized.  A further Coca-Cola bottle, this one full of isopropyl alcohol was seized.  It was never suggested that this further bottle was the bottle which was the source of the accelerant which provided the basis for the fire on the victim.

30.  Pertinently for this ruling, there was an examination of the balcony of the flat which had been converted into a room.  This room is where the accused and his then long-term girlfriend had been located until a very few minutes before the fire.  There was, amongst other things, a further 1.25 L Coca-Cola bottle located on the bedside table next to the bed in that room.  That bottle is seen in photographs of the converted balcony and contained a brown liquid and was approximately half full.  The photographs were part of the Admitted Facts and the Admitted Facts also included the timeat which the photographs including the one showing the Coca-Cola bottle in the converted balcony were taken.  These photographs appear to have been taken well before either the scientific officer or the exhibits officer got to the converted balcony.  During the course of the examination of the flat by the scientific officer, that bottle was not amongst those items which were instructed to be seized.  The initial testimony of the exhibits officer could be understood as bearing the meaning that the scientific officer gave a positive instruction not to seize the half empty Coke bottle in the converted balcony. In the result, it became apparent that what the exhibits officer actually meant was that no instruction had been given by the scientific officer in connection with that specific Coke bottle and the exhibits officer interpreted the absence of an instruction as an instruction not to seize it.  Once this linguistic conundrum was resolved (that took some time) the next thing to occur was that the exhibits officer himself opened the bottle smelled it and then tapped the contents down the sink as he considered this to be of no significance to the investigation.  The accused produced during the course of his defence case but not during the course of cross examination of the exhibit officer a photograph showing the empty Coke bottle near the bed.  It was the photograph and the timing of the photograph and the circumstances which were the subject of the application by the prosecution.

31.  This also came against the background that the accused said at the previous trial before Deputy Judge Stuart-Moore that three Coca-Cola bottles had been tendered.  In the trial before me, two were tendered.  The first one was the crushed bottle and the other one was a 1.25 L bottle which was almost full of isopropyl alcohol.  The allegation implicit in this assertion was that the prosecution in the trial before me had something to hide.  An examination of the transcript of the scientific officer at the previous trial and the exhibit list revealed that there was no third Coca-Cola bottle tendered at the last trial but this was an issue which was pressed by the accused until almost the very end of the retrial.  It is perfectly understandable that against all this background that the prosecution was anxious that it do something and be seen to do something to rebut the persistent allegations of police and prosecutorial misconduct.

32.  The application by the prosecution came against the background of the specific attack in cross examination by the accused of this officer.  It was alleged that what he did in making the decision that the brown liquid in the half empty Coke bottle was not relevant to the police investigation was a gross and perfidious breach of police procedure and revealed the officer as an incompetent bumbler or possibly that he was personally complicit in criminal misconduct.  Nothing was done by halves so far as the defence case and this aspect was no exception.  The prosecution sought to show that the photograph was taken by the exhibits officer and the time of that photograph and the circumstances in which it was taken.  The object of this was to answer the allegations of the exhibit officer’s perfidy at least in relation to the emptying of the Coke bottle.

33.  The specific application of the prosecution was to recall the exhibits officer to permit him to testify about the circumstances in which the photograph was taken.  These circumstances had not been the subject of his testimony before the close of the prosecution case.

34.  The principles which inform a ruling as the circumstances when the prosecution might be permitted to reopen its case is that the general rule is that a party may not split his case: R v Rice [1963] 1 QB 857; Shaw v R (1952) 85 CLR 365.  The rule is one of practice rather than law: Shaw v R (above); R v Rice (above); R v Francis [1990] 1 WLR 1264; R v Soma (2003) 212 CLR 299, (2003) 140 A Crim R 152.  Generally speaking, only in exceptional circumstances would the prosecution be permitted to reopen its case.  In this regard, in Shaw v R, (above) Fullagar J considered the exceptional nature of the discretion to permit the prosecution to split its case:

“ … it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula.”

35.  In recent times, the Court of Appeal considered these principles in HKSAR v Tsang Kai On [2017] 2 HKC 178, §18, citing R v Francis (above)with approval.  In particular, the passage that the Court of Appeal relied on from R v Francis is: “But lest there be any misunderstanding and lest it be thought we are opening the door too wide, we would echo what was said by Edmund-Davies LJ in the Doran [(1972) 56 Cr App R 429] case at p 437 that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions.”

36.  There are a multitude of headings for consideration of the exercise of the discretion vested in the court to permit the prosecution to reopen its case.  These are probably nothing more than examples of the basic principle.  The example which immediately comes to mind is the ex improviso principle.  If ever there was a case where the prosecution could not have imagined each of the twists and turns that the defence case took, this might be that case.  I refuse the application even though, arguably, the application might have been well-founded under that heading.  My basic concern was that even if the prosecution did what it proposed to do the source of the information about the photograph was the already extensively impugned exhibits officer and, in the grand scheme of things, I could not see how this would help the jury resolve the issues before them.  I readily accept that it would have provided an element of indication for the prosecution and for the officer concerned. However, that was not a focus of mine in this case.  I did not think that the proposed evidence was sufficiently important to permit the prosecution to reopen its case.

POSTSCRIPTS

37.  At various stages of the exchanges between the court and the accused he indicated that he was having difficulty understanding what was being said to him, particularly by me and he questioned the skill and professionalism of the court-appointed interpreter.  I was not appropriately qualified to judge the skill of the interpreter although his professionalism was manifest throughout.  However, it became apparent during the course of the exchanges over the preliminary enquiry that the accused clearly understood the issues and clearly understood the enquiries being made of him to identify the true nature of his contentions.  That was clear from the content of his answers as they were interpreted to me. There was nothing that I could see which suggested that the accused did not understand what was going on.  Perhaps the best example of the clarity with which this obviously quite intelligent man understood what was going on occurred following the rulings on the two topics pre-trial raised herein when I took the opportunity to explain aspects of court procedure which was relevant to the conduct of the case following the rulings.  He made a number of observations which were pertinent and plainly perceptive.

38.  Although the position of the accused changed in the course of the trial, in relation to the allegation that the video recorded interviews had been tampered with, the final position of the accused was to accept that they had not been tampered with.  The position so far as the complaints by the accused as to the recording of a 999 call made by the accused shortly after the victim was found to be on fire continued to be the subject of complaints of tampering.