HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HCCC 309/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

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REASONS FOR RULING

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Background

1.  On 29 April 2016, the accused (hereinafter referred to as “D1”, “D2” and “D3” respectively) were convicted of various counts on an indictment after a lengthy trial before Anthea Pang J, as Anthea Pang JA then was, and a jury (“the 2016 trial”).  Their convictions were subsequently quashed by the Court of Final Appeal with a retrial ordered.  The retrial was heard before Deputy High Court Judge Bruce SC and a jury in 2021.  On Day 57 of the retrial, a prosecution witness gave unsolicited evidence which was prejudicial to the accused.  Upon the defence application, DHCJ Bruce discharged the jury and the retrial was aborted as a result (“the 2021 trial”).

2.  The second retrial was scheduled to recommence on 2 May 2023 with 100 days reserved.  The defence contended that this case was not ready for trial as a number of pre-trial matters including a second application for permanent stay of the proceedings need to be resolved prior to its commencement.  Also the position of D3’s legal representation remains uncertain until the Court of Final Appeal reaches a decision on a costs order arising from the 2021 trial[1]. Periods of time were set aside to deal with the pre-trial arguments.  The retrial is now fixed to commence on 3 July 2023.

Matters raised

3.  Some of the matters jointly raised by the defence in the first round of the pre-trial arguments[2] which require resolution are:

(1)     Status of the previous rulings of Pang J in the 2016 trial and DHCJ Bruce in the 2021 trial.

(2)     The defence be permitted to make a joint opening speech immediately after the prosecution opening.

(3)     The prosecution be required to call or tender Messrs Nicholas John Cross and Kerry Joel Knight as prosecution witnesses.

(4)     The prosecution to confirm whether Messrs Wu Wing Kit and Navin Aggrawal would be called as prosecution witnesses.

(5)     Admissibility of the evidence of Mr David Wiltshire.

4.  After hearing submissions in February 2023, I gave my ruling on the above matters on 27 March 2023.  I will now give my reasons.

Status of the previous rulings

     Defence submission

5.  The defence submitted that it is the convention in England and Wales that rulings given by a first instance court in the same case are binding on the parties at a retrial unless the rulings can be shown to be clearly wrong.  Contending that this convention also applied in Hong Kong, the defence invited this Court to order that all the rulings of Pang J in the 2016 trial and all the rulings of DHCJ Bruce in the 2021 trial should be binding on parties save for two rulings which the defence sought to overrule: (i) the ruling of Pang J in relation to the obligation to disclose the Commission Sharing Agreement[3]; and (ii) Pang J’s direction to the jury that it was sufficient to sustain that D1 and D2 were ‘working together’ in some unspecified way.

6.  Pointing out that the law should generally be certain and consistent, Mr Owen KC submitted that there was a clear body of case law which confined the ability of a judge of coordinate jurisdiction to depart from earlier rulings.  He referred to the following ruling of Deputy High Court Judge Louis Blom-Cooper QC in the English case of R v Hertsmere BC ex p. Woolgar[4]:

“A court is, other than exceptionally, bound to follow the previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions are: 1. The court is entitled and bound to decide which of two conflicting decisions of its own will follow (That does not apply here): 2. The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot stand with a decision of a higher court (That, too, is not applicable here; there has been no judicial ruling by the Court of Appeal on section 72). 3. The court is not bound to follow a decision of its own, if it is satisfied either that the decision was given per incuriam, or it is convinced that the earlier decision was wrong. …

There is no distinction, jurisdictionally, to be made between a deputy High Court judge and the real thing, a High Court judge.…

The exception to the rule of precedent was stated, and never doubted, nearly half a century ago by Lord Goddard C.J. in Huddersfield Police Authority v Watson [1947] K.B. 842:

“I think the modern practice is that a judge of first instance, although, as a matter of judicial comity, he would usually follow the decision of another judge of first instance, unless he was convinced that the judgment was wrong, certainly is not bound to follow the decision of a judge of equal jurisdiction”.” (emphasis added)

7.  Reference was also made to the principle of precedent stated by the English Court of Criminal in R v Rowe[5]: “the liberty of the Criminal Division to depart from precedent which it was convinced was erroneous was restricted to cases where the departure was in favour of the accused.”

8.  According to Mr Owen, the threshold test is that the previous decisions of a court of coordinate jurisdiction should only be departed from if the decision is clearly wrong, as held by Hartmann J (as he then was) in Building Authority v Appeal Tribunal (Buildings)[6]:

“… It is a judgment given at first instance and is not therefore binding upon this Court. It is nevertheless persuasive authority, one from which I will only reluctantly dissent if I am satisfied that it was clearly wrong. Burrell J has summarized the applicable principles in Building Authority v Business Rights Ltd [1999] 3 HKC 247 (at 251):

‘It is trite to observe at the outset that this court is not bound by Gall J’s decision. However it would be wrong to give an opposing judgment merely because this court held a different opinion. I refer to two short statements which amply clarify the position. Firstly from Denning J, as he then was, in Minister of Pensions v Higham [1948] 2 KB 153, where he says (at 155):

... They [previous decisions] are not absolutely binding on the Superior Court itself or on the courts of co-ordinate jurisdiction but will be followed in the absence of strong reason to the contrary ...

and Lloyd LJ in R v Central Criminal Court, ex p Francis & Francis (a firm) [1988] 2 WLR 627 at 633:

This court is always reluctant not to follow its previous decisions. But if we are persuaded that a previous decision is clearly wrong, we are bound to say so ...’” (Emphasis added)

9.  Mr Owen pointed out that most of the previous rulings given by Pang J and DHCJ Bruce were considered written rulings.  He said this Court should follow the “Hartmann threshold test” to conclude that all the previous rulings of Pang J and DHCJ Bruce are binding on parties unless they were clearly wrong.

     Prosecution submission

10.  Mr Mitchell accepted there was some force for the defence to base their argument on the principle of certainty in law.  However, it does not follow that the convention in England and Wales is necessarily applicable to Hong Kong, an entirely independent and separate legal jurisdiction with its own set of laws, practices, procedures and convention.

11.  Mr Mitchell submitted that where a retrial is ordered by the appeal court in Hong Kong, rulings made at the previous trial are not necessarily binding at the retrial.  This is because the previous rulings were made in the context of the proceedings (including any evidence presented up to the date of the ruling) as was then before the presiding judge.  Depending upon the circumstances, it is open for the trial judge to revisit those rulings at any time prior to the verdict.  It would therefore be wrong for this Court to simply adopt the previous rulings without being satisfied that they are correct in the present circumstances.

12.  Having said that, Mr Mitchell clarified that the prosecution generally accepted the rulings made by both Pang J and DHCJ Bruce save and except (i) the ruling of DHCJ Bruce permitting the defence to make an opening statement immediately after the prosecution opening[7]; and (ii) the rulings of DHCJ Bruce inviting the prosecution to call Messrs Cross[8] and Knight[9] as prosecution witness.  He submitted that the former ruling was wrong in the context of the well-established practice and procedure in Hong Kong, whereas the invitation to call Messrs Cross and Knight should not be followed in light of what happened as a result of the invitation.

     Consideration

13.  I should state at the outset that I do not consider the cases relied upon by the defence support their proposition that all the rulings given by a first instance judge in a criminal trial are binding at the retrial unless they are clearly wrong.  The English case of R v Hertsmere BC ex p. Woolgar was an application for judicial review in which the deputy High Court judge was exercising the supervisory jurisdiction of the High Court over inferior courts and tribunals.  Similarly, the case of Building Authority v Appeal Tribunal (Buildings) was also an application for judicial review.  The case of R v Rowe involved the doctrine of precedent applicable to the Criminal Division of the English Court of Appeal.  None of these cases discussed the binding effect of rulings made by a first instance judge in a criminal trial.

14.  I agree with Mr Mitchell that the rulings of a judge in a criminal trial are made in the context of the proceedings before him.  The judge in a criminal trial may need to rule on a variety of matters. For instance, some rulings may involve points of law; some may involve a mixture of law and facts; some on procedural arrangement; some on the exercise of discretion; and some may involve assessment of the weight of evidence or the credibility of witnesses.  Depending on the circumstances, the trial judge is entitled to review his earlier ruling in light of new evidence to ensure that the trial is just and fair.  It follows that in the case of a retrial, the judge may need to consider the suitability of the previous rulings in light of the prevailing circumstances of the retrial.

15.  It is trite that this Court is not bound by the decisions of a court of coordinate jurisdiction.  The decisions made by a judge of first instance do not bind the other first instance judges, and there is certainly no obligation on the other judges to follow them.  The same applies in the case of a retrial.  The decisions in the earlier trial do not create a precedent, and the judge is not bound to follow them at the retrial.  This is not to say that they should be disregarded altogether.  They are of persuasive value and may deserve due attention in the circumstances of the retrial.

16.  In the present case, save for the matters specified in paragraphs 4 and 11 above, both parties are contented to follow generally the previous rulings by Pang J and DHCJ Bruce in the earlier trials.  No doubt parties are better placed to consider the appropriateness of those rulings.  There is no reason for me to doubt the correctness of those rulings.  I would therefore adopt and follow those rulings insofar as they are applicable to the forthcoming trial.

     Conclusion

17.  The previous rulings of Pang J and DHCJ Bruce are not binding on this Court at the retrial.

Defence opening

     Defence submission

18.  The defence made an application for the giving of a joint opening speech immediately after the prosecution opening, pointing out that they were allowed to do so by DHCJ Bruce at the 2021 trial.  No written reason was given by DHCJ Bruce but he explained to the jury in the following terms[10]:

“… That is actually quite unusual for the defence to get to say something to you like that at this stage, but I have determined, in the interests of justice that this is an appropriate course to take in this case because I’m concerned that you understand what the defence, in effect, disagree with in the prosecution case. It is intended that this is to help you understand the issues that you will need to consider and that you be able to understand those issues right from the start rather than waiting for a whole lot of witnesses to come along, and then you find out what the defence position is. …”

19.  Mr Winter KC submitted that making a defence opening was an established practice subject to the court’s discretion.  He referred to the Canadian case of R v Pickton^[11] where the trial judge observed that “There is a substantial body of authority which holds that there is a discretion vested in the trial judge to permit counsel for the accused to open to the jury immediately following the Crown, but that discretion is to be exercised only in special or unusual circumstances.”  Given the size and complexity of that case which could readily be characterized as special or unusual, the trial judge exercised his discretion to permit the defence to make brief opening remarks to the jury.

20.  Mr Winter said such discretion has been frequently exercised in England and Wales, citing as examples two recent English trials in which he was allowed to make a defence speech to identify the issues for the jury.  It is to be noted that in England and Wales, there is a general duty on the defence to disclose the details of its case ahead of trial.

21.  It was submitted that given the complexity of the present case, it would be in the interest of justice for the defence to help the jury by identifying the issues to them in a short defence opening.  Mr Winter also undertook on behalf of all the accused that should the defence be permitted to take the opening at the outset, the defence would forgo the making of a second opening speech before calling any defence evidence.

     Prosecution submission

22.  Mr Mitchell contended that DHCJ Bruce was wrong to permit the defence to make an opening statement immediately after the prosecution opening.  This was unprecedented in Hong Kong, and there were no bases for setting this precedent in this particular trial.  There had been far more complex and lengthy trials in Hong Kong where this highly unusual process has not been adopted in the past.

23.  Mr Mitchell submitted that the practice of the defence making an opening statement is encapsulated in recent legislation in England and Wales whereby defence opening statements are permitted by rule 25.9(2)(c) of the Criminal Procedure Rules 2020 (“CPR”) when a defendant pleads not guilty in the Crown Court:

“25.9 Procedure on plea of not guilty

(1) This rule applies where—

(a) the defendant pleads not guilty;or

(b) the defendant declines to enter a plea and the court treats that as a not guilty plea.

(2) In the following sequence—

(a) where there is a jury, the court must—

(i) inform the jurors of each offence charged in the indictment to which the defendant pleads not guilty, and

(ii) explain to the jurors that it is their duty, after hearing the evidence, to decide whether the defendant is guilty or not guilty of each offence;

(b) the prosecutor may summarise the prosecution case, concisely outlining the facts and the matters likely to be in dispute;

(c) where there is a jury, to help the jurors to understand the case and resolve any issue in it the court may—

(i) invite the defendant concisely to identify what is in issue, if necessary in terms approved by the court, and

(ii) if the defendant declines to do so, direct that the jurors be given a copy of any defence statement served under rule 15.4 (Defence disclosure), edited if necessary to exclude any reference to inappropriate matters or to matters evidence of which would not be admissible;

…

(g) the defendant may summarise the defence case, if he or she intends to call at least one witness other than him or herself to give evidence in person about the facts of the case;”

24.  Mr Mitchell submitted that the CPR does not give the right to the defence to make an opening statement.  After the prosecution opening, the court may invite the defence to identify concisely what is in issue: rule 25.9(2)(c).  After the prosecution case, the defendant may summarise the defence case if he intends to call at least one witness other than himself: rule 25.9(2)(g).  In Hong Kong, section 55 of the Criminal Procedure Ordinance (Cap.221) does not allow the defence to make an opening speech if the accused is the only witness for the defence.  There is no equivalent legislation to allow the defence to make an opening statement after the prosecution opening.  It is simply not part of the Hong Kong criminal practice and procedure.

25.  Furthermore, the position with regard to the criminal practice and procedure in England and Wales is different from Hong Kong: the right of silence on arrest and caution has been abrogated; pre-trial disclosure has to be made by the defence in the form of a defence statement and provision of details of witnesses to be called in support of the defence.  So the court in England and Wales would be in a better position to determine whether to issue the invitation to the defence to make an opening statement.

26.  As to Mr Winter’s making of a defence statement in two recent English cases, Mr Mitchell said they were merely references with very little, if any, weight in the absence of written judgments setting out the context and reasoning behind.

27.  In respect of the line of Canadian authorities, Mr Mitchell stressed that the discretion should be exercised only in special or unusual circumstances.  He also helpfully referred to some of the pitfalls observed by the judge in R v D.(A.)[12], and the cases reviewed in an article entitled “Opening Address by Defence”[13].

28.  Mr Mitchell said the special or unusual circumstances in favour of an early defence opening do not arise here.  In respect of the length of trial, he pointed out that the 2021 trial was aborted after 57 days of evidence when the prosecution was about to close its case.  Given Mr Winter’s indication that the forthcoming trial would be much shorter than the 2021 trial, this trial is reasonably lengthy but by no means one of the longest criminal trials conducted in Hong Kong.

29.  In respect of the complexity of this case, Mr Mitchell referred to the conclusion of DHCJ Bruce after hearing 57 days of evidence that this was “a comparatively straightforward prosecution case” and in some respects, the arguments presented by the defence introduced an air of unreality[14].  To this regard to permit an early defence opening would have the danger of putting those matters before the jury.  In any event, the defence would be apparent to the jury during the course of the prosecution evidence because defence counsel has the duty to put squarely the defence case to the witnesses in cross-examination.

30.  As to Mr Winter’s undertaking not to make a defence opening after the close of the prosecution case, Mr Mitchell pointed out that it would be unfair to make such an undertaking on behalf of the unrepresented D3 at this stage.  Nonetheless, he reminded this Court that the right to the defence opening would not even arise if no witness of fact is to be called in addition to the accused.  So, he said, the making of a joint defence statement at the outset would place the accused in a better position than they might be in at the close of the prosecution case.  Besides, it would be unfair to make give the undertaking on behalf of D3 at this stage.

     Consideration

31.  It falls upon me to consider this matter afresh given my earlier ruling that I am not bound to follow the previous decisions made by the judges in the earlier trials.

32.  The way criminal trials are run in England and Wales have changed dramatically.  Following the rule change which came into force on 5 October 2020, defence opening is permitted immediately after the prosecution opening where a defendant pleads not guilty.  It would appear that the inspiration for the rule came from the recommendation in Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings published on 23 January 2015.  It took some years before the rule is introduced in the Magistrates’ Court and the Crown Court in England and Wales.  The new rule is made on the basis of pre-trial disclosure, and the defence opening should be in accordance with the defence statement served under rule 15.4 of the CPR.  In the circumstances it would be dangerous to adopt only part of the new English practice in view of the huge difference between the procedural framework of the two jurisdictions.

33.  In Hong Kong there is no right for defence counsel to make an opening speech immediately following the opening speech for the prosecution.  However, the court has an inherent discretion to permit an early defence opening.  On the Canadian authorities, the discretion should be exercised only in special or unusual circumstances. 

34.  Are there any special or unusual circumstances to justify the discretion in the present case?  In the 2021 trial, DHCJ Bruce did not give any written judgment on the reasons why he permitted the defence to give the joint opening.  He explained to the jury that this was to help the jury to understand the issues right from the start.  In the present case, Mr Winter confirmed that the only reason for this application is to identify the issues for the jury.  The argument that an early defence opening would be able to identify the issues for the jury is an argument which could be advanced in almost every case.  Yet the dearth of English authority on this practice and the complete absence of it in Hong Kong would suggest that the occasion where it may be appropriate to give permission is very rare indeed.

35.  In my view, the length of a trial itself can rarely constitute a special or an unusual circumstance.  It is to be noted that in the 2021 trial, a total of 18 witnesses were called by the prosecution.  The unsolicited prejudicial evidence which resulted in the discharge of the jury was given by the last prosecution witness on Day 57.  It would thus be reasonable to estimate that the prosecution case would take around 60 days.  I was told by the defence that the forthcoming trial should be shorter.  No doubt this is quite lengthy when compared with the run of the mill cases, but it is certainly not so exceptional as to justify an early defence opening.

36.  In the case of Pickton, the trial judge allowed the application having regard to the size and complexity of that trial which was anticipated to run 12 months.  Pre-trial applications were made over the year preceding the trial, and the prosecution intended to call 240 persons to testify in that trial.  The present case would have no comparison with that case by any standard.  As Mr Mitchell rightly pointed out, in the history of Hong Kong there were many other cases that could be regarded as far more complex than the present one.  As such I do not agree that the complexity of this case is so unusual that it justifies an opening speech at the outset.

37.  In this case, I would have thought the issues would become apparent to the jury at an early stage as witnesses are being examined and cross-examined.  Besides, the jury will know what the essential issues are because Mr Mitchell will tell them in his opening speech.  I am also mindful of the risk that the defence opening may serve as an untimely and confusing interruption of the prosecution case.

38.  There are no special or unusual circumstances to justify the discretion to permit an early defence opening in this case.  The normal procedure of speeches should remain accordingly.

     Conclusion

39.  The defence’s application to make a joint opening speech immediately following the prosecution opening is refused.

Calling of Messrs Nicholas John Cross and Kerry Joel Knight

40.  At the 2021 trial, DHCJ Bruce made two rulings inviting the prosecution to call Messrs Nicholas John Cross and Kerry Joel Knight as prosecution witnesses.  Both Messrs Cross and Knight worked for Messrs Knight Coldicutt, solicitors in New Zealand.  The prosecution alleged that Mr Knight had previously represented D2 in matters relating to this case, and D1 had been instrumental in the appointment of Messrs Knight Coldicutt as solicitors for the listed China Jin Hui Mining Corporation Limited (“462”) in New Zealand.

41.  Both Messrs Cross and Knight were not named on the back of the indictment.  There was no application made by the defence to call either of them at the 2016 trial.  On 15 April 2021, about two months into the 2021 trial, the defence applied for an order that the prosecution be directed to call Mr Cross to give evidence concerning the NZ$51.6 million which had been raised as part of the fund raising exercise by 462.  The funds raised was sent to Messrs Knight Coldicutt to hold in escrow.  Messrs Knight Coldicutt released NZ$51.6 million to D2, relying upon an email apparently from Mr Graham Chin of 462.  Messrs Cross and Knight were the transactional lawyers.  Background of the events leading to the defence application is outlined in paragraphs 3-16 of the ruling by DHCJ Bruce[15], and I do not intend to repeat it here.  To put in a nutshell, the prosecution contended that the transfer of money supported the inference of dishonesty.  The issue was whether there was authority to transfer the money and the characterisation of the transfer.

42.  The prosecution resisted the application.  It was made clear to DHCJ Bruce that the prosecution had strong reservations about the credibility and reliability of Mr Cross.  In his ruling DHCJ Bruce referred to the principles authoritatively set out by the English Court of Appeal in R v Russell-Jones[16]:

“The principles which emerge from the authorities and from rules of practice appear to be:

(1) Generally speaking the prosecution must have at court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to rely), if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served.

(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered.

(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. See per Lord Parker CJ in Oliva (supra).

See also per Fullagar J in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 C.L.R. 279, 292:

‘The present case, however, seems to me to call for a reminder that the discretion should be exercised with due regard to traditional considerations of fairness.’

The dictum of Lord Thankerton in the Palestine case “the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive” does not mean that the Court will only interfere if the prosecutor has acted out of malice; it means that the prosecutor must call his mind to his overall duty of fairness, as a minister of justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task—in that sense, an oblique motive.

Clearly, however, to say merely that the prosecutor must act fairly gives little guidance as to how the discretion should be exercised in practice; and there are further limiting principles.

(4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say “incredible”, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.

This limitation of the prosecution's discretion, which requires witnesses of the central facts to be called, is supported by what was said by Lord Roche in Seneviratne. This is also the sense in which, as it seems to us, Lord Hewart C.J.’s observation in Harris [1927] 2 K.B. 587, 590 should be read.

(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.

(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.

(7)   A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies.  To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case.  No sensible rule of justice could require such a stance to be taken.”

43.  Bearing in mind the relevance and potential importance of the witness’s testimony, DHCJ Bruce considered that the prosecution’s reservations “does not provide a justification for a refusal on the part of the Court to invite the prosecution to call Mr Cross as a witness.”  Pointing out that the prosecution called Mr Cross in the earlier proceedings through the presentation of his deposition, the judge said it would be difficult for the prosecution to maintain that he was not a reliable or truthful witness.[17]

44.  Subsequently, there was a further application by the defence seeking a court order to have the prosecution called Mr Knight.  The judge considered that it would be in the interests of justice to invite the prosecution to call Mr Knight to testify, and he so ordered.[18]  Counsel prosecuting on fiat[19] deferred to the judge’s invitation and proceeded to call those two persons.

     Defence submission

45.  Referring to the rulings given by DHCJ Bruce inviting the prosecution to call Messrs Cross and Knight, the defence said the interests of justice required the prosecution to call or tender those two witnesses at the forthcoming trial.

     Prosecution submission

46.  Mr Mitchell resisted the application, pointing out that the prosecution had strong reservations about their credibility and reliability in 2021, and that remains the position today.  He submitted that the prosecution have a wide discretion to determine who would be called in support of the prosecution case.  In the case of Richardson v R[20] the High Court of Australia examined the prosecutor’s discretion as to the witnesses to be called:

“Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called, he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few. …

It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. …

It seems to us that there has been a tendency to overlook what was said by the Judicial Committee in Adel Muhammed el Dabbah v. Attorney-General (Palestine), where there is to be found an accurate and comprehensive statement of the function of the Crown prosecutor. … But it is important to recall that their Lordships, after observing:

“the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive”

said:

“It is consistent with the discretion of counsel for the prosecutor, which is thus recognized, that it should be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender such witnesses for cross-examination by the defence, and this practice has probably become even more general in recent years, and rightly so, but it remains a matter for the discretion of the prosecutor.” (emphasis added)

47.  Putting aside the prosecution’s concern about their credibility, Mr Mitchell submitted that neither Messrs Cross or Knight would be in a position to provide any critical evidence.  Mr Cross previously gave evidence by way of deposition in New Zealand about the books of account of Messrs Knight Coldicutt.  That evidence has already been reduced into Admitted Facts, and the calling of Mr Cross was not required.

48.  At the 2021 trial, Mr Cross said he was not involved in the process of transferring the NZ$51.6 million at all, and had no knowledge of how the figure was arrived at.  He had no recollection of the basis of the payments.  He also failed to recall the authorisation email from Graham Chin.  He did not recall any direct discussion or whatever about a joint venture company.

49.  As for Mr Knight, he did not know or recall how the figure of NZ$51.6 million was arrived at.  He did not recall seeing letters or emails about the funds transfer.  He did not recall why the financial assistance issue arose nor did he recall the repayment of the funds. He did not know the NZ$51.6 million became part for financial assistance and part for acquisition of farms.  He was not involved in getting the loan agreement signed.

50.  In the circumstances, Mr Mitchell said it would be difficult to fathom how the testimony of Messrs Cross and Knight could assist the Court.  It would be purely speculative to think they would reveal matters favourable to the defence.  The defence would not be prejudiced by the absence of their evidence.

51.  Mr Mitchell stressed that the prosecution case has very little to do with the NZ$51.6 million sent to Messrs Knight Coldicutt.  In any event the issues surrounding the funds transfer would be dealt with by Mr YIP Kean Mun, another main witness.

     Consideration

52.  I am not bound by the previous rulings of DHCJ Bruce inviting the prosecution to call Messrs Cross and Knight as prosecution witnesses.  I am in respectful agreement with his rulings on this matter.  The reasoning for his rulings was compelling and it remains good as of today.

53.  It is to be noted that DHCJ Bruce had the advantage of hearing a substantial part of Mr Cross’ testimony before observing that “he appears to be a witness genuinely trying to recall his part in the transaction in respect of which his evidence was required.  It seems to me that he is generally credible and I certainly accept the parts in which he makes it plain that he had nothing to do with the decision to transfer of the NZ$51.6 million.”

54.  With regard to the prosecution’s assertions about the veracity and reliability of Mr Knight, the judge noted, “The assertions are hearsay and appear to come from newspapers in New Zealand.  While there are many circumstances in which hearsay assertions might persuade a Court that the witness is unworthy of belief, in the context of this case, I am not persuaded that these assertions are ones upon which this Court could properly and safely act.”

55.  In respect of the contact between D2’s legal representative and Mr Knight, the judge commented, “That contact would only be sinister if during the contact or subsequently it was suggested to Mr Knight what he ought to say in the event of him being called to testify.  There is not a scrap of evidence presently before the Court which would support such a conclusion.”[21]

56.  There is no reason for me to doubt the correctness of DHCJ Bruce’s assessment of the situation concerning those two witnesses.  Suffice to say that on the information before me, I am not satisfied that either Messrs Cross or Knight is not capable of giving truthful evidence.

57.  It may be the case that those witnesses’ evidence is of marginal relevance to the prosecution case, but certainly it is potentially relevant to the transfer of NZ$51.6 million and the issue of the Graham Chin authorization.  Whether they will be able to give any useful evidence on those issues is a matter to be seen.  It would be inappropriate for me to form any view about their inability to recollect the relevant events at this stage.

58.  In my decision, it would be in the interests of justice to invite the prosecution to call Messrs Cross and Knight or to tender them as prosecution witnesses.

59.  I was advised by Mr Mitchell that Messrs Tanner De Witt, solicitors for the liquidators of 462 has granted a waiver in respect of the evidence of Mr Cross, but no such waiver has been granted in respect of Mr Knight.  It would be appropriate for the matter to be referred back to Messrs Tanner De Witt for them to confirm the position with the joint provisional liquidators and the Cayman Islands about issues of legal professional privilege.

     Conclusion

60.  The prosecution is invited to call Messrs Cross and Knight as prosecution witnesses.

Calling of Messrs Wu Wing Kit and Navin Aggrawal

     Defence submission

61.  Towards the end of the 2021 trial, the prosecution indicated that consideration was being given to calling Messrs Wu Wing Kit and Navin Aggrawal to deal with the NZ$51.6 million issue.  The defence said it would be in the interests of justice to have them called, and asked the prosecution to confirm whether they would be calling them to give evidence for the prosecution, and if not why not.

     Prosecution submission

62.  The prosecution confirmed that both Messrs Wu Wing Kit and Navin Aggarwal were not named on the back of the indictment, and no witness statement had been taken from them as prosecution witnesses.  There has been no contact with either of them by the prosecution.  No regard should be given to Ms Draycott’s remark which only came up in passing, Mr Mitchell said.

63.  Mr Mitchell explained why it would not be appropriate for the prosecution to approach Mr Wu Wing Kit.  First of all, he was the solicitor who advised D2 in the acquisition.  He was also involved in advising D1 in associated matters.  Secondly, he was prosecuted for the offence of money laundering in respect of an associated matter, namely handling part of the NZ$51.6 million which was sent to the client account of his firm, Mr Wu being the handling solicitor.  He was convicted at the first trial in the District Court, and he was acquitted on retrial.  As such there was no contact between Mr Wu and the prosecution any stage.  In the circumstances it would be ridiculous for the prosecution to put him forward as an honest and truthful witness.

64.  Given that Mr Wu was the lawyer who advised D2 (and D1) at the time, any legal professional privilege would rest with D1 and D2.  Mr Mitchell pointed out that it would be open for the defence to waive such privilege and to have Mr Wu called if considered appropriate.

65.  Mr Navin Aggarwal was convicted of theft of client money (including the money of a main prosecution witness Ms Katherine Chan) in Messrs K&L Gates and was sentenced to 12 years’ imprisonment.  He could not be considered as an honest witness.  In any event, he is unwilling to cooperate and has refused to testify.

     Consideration

66.  In this case, I do not accept that there is a duty on the prosecution to call Mr Wu or Mr Aggarwal.  The prosecution neither want nor need their evidence.  They are not listed on the back of the original or the fresh indictment.  No witness statement was ever taken from them.  Mr Wu was prosecuted for a related matter, and Mr Aggarwal has all along refused to cooperate with the prosecution.  The prosecution have absolutely no idea of what they are going to say.  In the circumstances any suggestion to have those persons called by the prosecution is simply preposterous.

67.  It is the long-established right of the prosecutor to exercise his discretion to determine which witnesses to call, and to form his own view of which witnesses may be regarded as reliable and which unreliable.  Leaving aside the issue of legal professional privilege which does not appear to be forthcoming from the defence, on the available information the prosecution are entitled to form the view that the evidence of those two persons is not worthy of belief.  The decision not to have them called in the prosecution case is, in my view, fully justified.

68.  In any event, no unfairness is likely to occur because the defence are at liberty to have those persons called as part of the defence case if they wish to do so.

     Conclusion

69.  The prosecution are not required to call Messrs Wu or Aggarwal.

The evidence of Mr David Wiltshire

70.  Mr Wiltshire was the finance and administration manager of the CraFarms who sent the financial information to the farm accountants.  He is an overseas witness and is not compellable by the Hong Kong courts to give evidence.

71.  Mr David Wiltshire’s depositions were obtained in New Zealand in 2013 pursuant to two letters of request under the Mutual Legal Assistance in Criminal Matters Ordinance, Cap. 525 (“MLACMO”).  Section 9(2) of MLACMO stipulates that the provisions of section 77F and 77G of the Evidence Ordinance (“EO”) shall, with necessary modifications, be applicable.

72.  Mr Wiltshire had indicated his unwillingness to travel to Hong Kong as early as 2013.  In his depositions, Mr Wiltshire said he had lost a lot out of all of this, costing him nearly his farm and his family, and the time.  He was just a single businessman after leaving Crafarms and needed to earn for his family.

73.  D3 was not present at the preliminary inquiry in New Zealand whereas D1 and D2 were represented by different counsel.

74.  In the 2016 trial the prosecution applied to adduce Mr Wiltshire’s depositions on two alternative bases: section 70 and section 77F of the EO.  Pang J ruled that the depositions were inadmissible under section 70 because they failed to satisfy a number of express requirements therein including that the examination was to take place before a magistrate.  She eventually admitted a redacted version of the depositions under section 77F of the EO upon being satisfied that the conditions in section 77F(1)(d) were met including, inter alia, that it was not reasonably practicable to secure his attendance in Hong Kong.  The redacted depositions were provided to the jury and a redacted version of the video recording of the proceedings was played before them.

75.  At the 2021 trial, the prosecution called Mr Wiltshire as a live witness to give evidence by way of TV-link from New Zealand.

76.  At present Mr Wiltshire is unwilling to give evidence in the forthcoming trial.  When the ICAC asked about his willingness to testify in the forthcoming trial, Mr Wiltshire gave the following reply email on 21 June 2021:

“I confirm that I have received your request and after much thought and consideration respond as follows. I have now given evidence over three times in this matter which is on record. I stand by the evidence I have previously given and as time goes on it is much harder to remember details so I see no advantage in my giving further evidence on this matter.”

77.  In February 2023, the ICAC emailed Mr Wiltshire asking again for his willingness to testify in the forthcoming trial.  In his email of 22 February 2023, Mr Wiltshire gave the following reply:

“I am not interested in investing more of my time into this case. I have given a lot of support previously both in Auckland Court and online and my testimony has been recorded several times, and as the years go on it is harder for me to remember exact details clearly. You are best therefore to rely on previous court transcripts.”

     Prosecution submission

78.  As stated above the Wiltshire depositions were received in their redacted form under section 77F of the EO in the 2016 trial. Schedule 6 of the Criminal Procedure Ordinance, Cap. 221 (“CPO”) provides for the admissibility of a transcript of the record of the evidence given by any witness at the original trial provided that certain conditions are satisfied.  The prosecution sought to adduce a transcript of the Wiltshire depositions read pursuant to paragraph 1(b) of Schedule 6.

79.  In the alternative, the prosecution invited the defence to consider adducing the transcript of Mr Wiltshire’s testimony in the 2021 trial by way of agreement under section 65C of the.  Noting that the scope of cross-examination of Mr Wiltshire in the 2021 trial was wider than that advanced in the 2016 trial, Mr Mitchell submitted that the alternative would alleviate any potential unfairness which might arise from using the depositions because D1 and D2, being represented by the same legal team, had to cross examine Mr Wiltshire in the 2021 trial [22]. He was also cross-examined by Mr David Khosa, counsel acting on behalf of D3 in both the 2016 and the 2021 trial.  Besides, it would appear that even if Mr Wiltshire did give evidence again, it would not take the matter any further beyond the evidence he gave in the 2021 trial.

     Defence submission

80.  The position of the defence is that they do not need Mr Wiltshire to be called, but there are consequences of him not being called by the prosecution.

81.  Mr Winter, on behalf of the defence, invited this Court to take note that during the preliminary inquiry in Hong Kong, the magistrate ruled that the New Zealand evidence inadmissible.  That means the Wiltshire depositions had never formed part of the proceedings in Hong Kong until it was permitted to be adduced into evidence under section 77F of the EO in the 2016 trial.

82.  Mr Winter submitted that Schedule 6 of the CPO is not applicable to Mr Wiltshire’s evidence in the 2016 trial because all Schedule 6 does is to dis-apply the provisions of section 70 of the EO (which deals with the admissibility of a deposition where a person is dead, etc.).  Schedule 6 has no application because Mr Wiltshire’s depositions were admitted pursuant to section 77F of the EO.  Furthermore, Schedule 6 only applies to the transcript of the record of evidence given by any witness at the original trial where a retrial is ordered pursuant to section 83F of the CPO.  As such it has no application to the testimonial evidence of Mr Wiltshire in 2021 because the 2021 trial was not the original trial.

83.  As to the prosecution’s suggestion of adducing the transcript of Mr Wiltshire’s evidence in the 2021 trial, Mr Winter pointed out that it would be wholly inadmissible as hearsay evidence.  In England there is a statute permitting an agreement to be made for a hearsay statement to be admitted to prove the truth of its contents.  But there is no similar provision in Hong Kong.

84.  It follows that, Mr Winter said, at the forthcoming trial the prosecution should either call Mr Wiltshire to give live evidence or apply to adduce his depositions pursuant to section 77F(1)(d) of the EO.  Nevertheless, it would be fundamentally unfair to adduce the depositions under section 77F because:

(a)     The reliability and accuracy of the CraFarms accounting records are at issue, but there was no cross-examination on the accuracy or reliability of the CraFarms accounts at the preliminary inquiry in New Zealand.

(b)     D3 was not present and was not represented at all in that preliminary inquiry, so he had no opportunity to cross examine Mr Wiltshire.

(c)     In the 2021 trial, Mr Wiltshire repeatedly conceded that he could not vouch for the reliability of the CraFarms accounting figures or the raw data from which they were produced.  As such, the depositions contained false, unreliable and incomplete evidence which has been replaced by Mr Wiltshire’s testamentary evidence in the 2021 trial.

85.  The defence invited this Court to rule that neither the depositions nor Mr Wiltshire’s testimony in the 2021 trial is admissible pursuant to Schedule 6 of the CPO.

     Consideration

86.  Where the Court of Appeal orders a retrial pursuant to section 83E of the CPO, section 83F of the Ordinance provides that Schedule 6 to the Ordinance shall apply. Paragraph 1 of Schedule 6 provides:

“Depositions

1. On a retrial, section 70 of the Evidence Ordinance (Cap.8) (admissibility in evidence in criminal proceedings of deposition of person dead, etc.) shall not apply to the depositions of any person who gave evidence at the original trial or to any written statement by such a person tendered under section 81A of the Magistrates Ordinance (Cap.227) in the committal proceedings before the original trial; but a transcript of the record of the evidence given by any witness at the original trial may, with the leave of the judge, be read as evidence—

(a) by agreement between the prosecution and the defence; or

(b) if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success,

and in either case may be so read without further proof, if verified in accordance with rules and orders made under section 9.” (emphasis added)

87.  One of the effects of paragraph 1 is to render depositions ordinarily admissible under section 70 of the EO or section 81A of the Magistrates Ordinance (Cap. 227) inadmissible if the deponent gave evidence at the original trial, but a transcript of the record of the evidence given may be admitted by agreement or where the witness becomes unavailable, etc.  In my judgment, the evidence given at the original trial must be construed to mean “the oral evidence given by the live witness at the original trial”.  In other words, a record of the oral evidence prevails over the deposition if the deponent became available to attend the original trial.  It does not extend to evidence adduced by other means such as reading out of the section 70 deposition.  It would be otiose for the provision to render the deposition inadmissible but at the same time admits a record of the same deposition read at the original trial.

88.  I therefore disagree with the prosecution that a transcript of the record of the depositions read in the 2016 trial can be admitted under Schedule 6 of the CPO because Mr Wiltshire was not called to give oral evidence at that trial.  As to Mr Wiltshire’s testimonial evidence given in the 2021 trial, it is common ground that Schedule 6 has no application because that was not the original trial.

89.  In my judgment, paragraph 1 of Schedule 6 permits the production of a transcript of the record of the evidence given by any witness at the original trial by agreement or when the witness becomes unavailable, etc.  As stated above the evidence given by any witness should mean the oral evidence given by the live witness.  A transcript of the record of the live evidence given by any witness can be so admitted irrespective of whether the witness has provided any section 70/81A deposition previously.

90.  For the sake of completeness, it would be necessary to point out that paragraph 1 of Schedule 6 only renders the section 70/81A depositions inadmissible in cases where the deponent has given oral evidence at the original trial.  It does not affect the admission of the section 70/81A deposition in cases where no oral evidence was given by the deponent, nor does it affect the admissibility of the deposition under other statutory provisions such as section 77F of the EO.

91.  I am mindful of the issues of unfairness said to be occasioned by the production of the Wiltshire depositions pursuant to section 77F of the EO.  There is no section 77 F application made by the prosecution. As such it would not be appropriate for me to deal with this matter at this stage.

92.  As to the prosecution’s suggestion of tendering a transcript of Mr Wiltshire’s testimonial evidence in the 2021 trial by agreement under section 65C of the CPO, I agree with Mr Winter that the transcript so admitted would be inadmissible hearsay for the purpose of establishing the truth of what was asserted in the transcript.

93.  Section 65B of the CPO provides that a written statement by any person that complies with the pre-conditions articulated therein be admissible as evidence to the like extent as oral evidence to the like effect by that person.  It would be open to the prosecution to consider whether to tender a transcript of Mr Wiltshire’s evidence in the 2021 trial by reducing it to a written statement in compliance with the conditions set out in section 65B of the CPO.  This course of action is only appropriate with parties’ consent given that the other party may require the statement maker to attend court and give evidence (section 65B(4)).

     Conclusion

94.  Schedule 6 of the CPO is not applicable to a transcript of Mr Wiltshire’s evidence in the 2016 trial.  The prosecution’s proposal to tender a transcript of his evidence in the 2021 trial by agreement pursuant to section 65C of the CPO is also rejected as inadmissible hearsay evidence.

Postscript

95.  These reasons are provided for the parties’ information only.  The only part of this judgment which may be reported publicly are the above Conclusions.  The remaining part of this judgment may not be reported until further order or until the conclusion of the trial. 

[Subject to Reporting Restrictions as per Paragraph 95 of this judgment]