CACC 172/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 172 OF 2016
(ON APPEAL FROM HCCC NO. 83 OF 2014)
____________
BETWEEN
HKSAR
Respondent
and
Yee Wenjye (also known as
3rd Applicantrd Defendant)
____________
Before:Hon Lunn VP in Court
Dates of Hearing: 21, 23, 24 March and 5 April 2017
Date of Ruling: 9 May 2017
_____________________
R U L I N G
_____________________
1. By a Notice of Motion, supported by the affirmation of his solicitor Mr Wong Chi Leung, filed with the Court on 21 March 2017 the 3rd applicant invited the Court to receive his 2nd affirmation dated 17 March 2017 as evidence in the appeal, pursuant to section 83 V(1) and (2) of the Criminal Procedure Ordinance, Cap. 221. In support of that application, the 3rd applicant filed with the Court a 3rd affirmation dated 28 March 2017. Then, by another Notice of Motion filed with the Court on 3 April 2017, the 3rd applicant sought to adduce as evidence in the appeal a letter dated 31 March 2017 from Messrs Hon & Co, his previous solicitors, to his current solicitors, together with attached enclosures, and a letter dated 1 April 2017 from his erstwhile counsel, Mr Douglas Kwok.
2. Clearly, the evidence that it was sought to adduce in the hearing primarily addressed an issue that had arisen in pre-trial hearings conducted by A. Pang J on and between 3 and 6 February 2015 in respect of the admissibility at trial of the deposition of David Wiltshire, namely the circumstances in which the 3rd applicant had not attended and/or been represented at the taking of evidence from David Wiltshire in New Zealand in early October 2013.
3. In his 2nd affirmation, the 3rd applicant addressed the circumstances in which, by letter of 26 September 2013, his solicitors had advised the Department of Justice that he would neither attend nor be represented at the proceedings in New Zealand. Exhibited to the 2nd affirmation was correspondence, dated on and between 17 July and 26 September 2013, between the Department of Justice and Messrs Hon & Co, the 3rd applicant’s then solicitors, together with a letter dated 27 August 2013 from the 3rd applicant personally to the Department of Justice.
4. In his 2nd affirmation, inter alia , the 3rd applicant re-asserted statements that had been made on his behalf before A. Pang J at the hearing. First, that he had been “…advised by Mr Kwok and verily believed that the 1st New Zealand proceedings were for the PI only and there would be an opportunity to cross-examine David Wiltshire at trial”.[1] Secondly, that he did not have available the funds to attend and/or be represented at the proceedings in New Zealand, given that:[2]
“ a. the Department of Justice refused to provide funds in advance for the airfares etc., and refused to contribute funds for me to instruct a New Zealand Barrister;
b. I simply could not afford to pay the airfares, accommodation expenses in advance;
c. I could not pay for the legal costs of a New Zealand Barrister;
d. Legal Aid Department would not cover the legal costs of my legal team incurred during the 1st New Zealand Trip.”
5. In his 3rd affirmation, the 3rd applicant re-asserted yet again those two complaints: “I was under financial constraints and could not afford to pay the fee and costs for me and my then legal team to attend the 1st New Zealand proceedings.[3] Secondly, “It is also plain from the correspondence that I then understood that the deposition hearing in New Zealand was for the Preliminary Inquiry, but not the trial.” [4] In addition, the 3rd applicant sought to explain why no evidence had been led on his behalf in respect of these issues before A. Pang J in February 2015: “It did not seem necessary for me to give evidence about my understanding or to call Douglas Kwok to give evidence as to the advice he gave me” [5] .
6. By the Notice of Motion filed with the Court on 3 April 2017, the 3rd applicant invited the Court to receive as evidence in the hearing a letter from Hon & Co dated 31 March 2017 in which, inter-alia , they asserted “…the main reason why Mr Yee did not attend the 1st New Zealand proceedings personally or with legal representatives was owing to his lack of financial means but not otherwise.” Attached to the letter were what were said to be emails between the 3rd applicant and Hon & Co dated 13 and 26 September 2013.
7. Also, the Court was invited to receive a letter dated 1 April 2017 from Mr Douglas Kwok to the 3rd applicant’s solicitors, in which he denied having advised the 3rd applicant at the Preliminary Inquiry “…that it was not necessary for counsel to attend the hearing in New Zealand at which evidence was given by Wiltshire because the witnesses would be called again during trial.” For his part, Mr Douglas Kwok endorsed the explanation advanced in the letter of Hon & Co for the fact that the 3rd applicant did not participate in the New Zealand proceedings as being “owing to his lack of financial means but not otherwise.” Finally, Mr Douglas Kwok said that, given that he had never received any instructions from the 3rd applicant to attend the New Zealand proceedings, he had made no arrangements in his diary to be available to do so.
8. All of the correspondence between the Department of Justice, the 3rd applicant’s then solicitors and the 3rd applicant personally which the 3rd applicant seeks to adduce into evidence at this hearing was before the judge in the proceedings held on and between 3 and 6 February 2015. Reference was made to it as being found in Tab 8 of the Core Bundle used in those proceedings.[6] Indeed, missing from the correspondence now sought to be put before this Court was a letter dated 13 August 2013, in that series of correspondence which was put before the judge.[7]
9. There is no dispute that the two issues said to be relevant to the circumstances in which the 3rd applicant did not attend the New Zealand proceedings, namely the advice of his counsel and the 3rd applicant’s impecuniosity, were canvassed at length before the judge in February 2015. In addressing the judge, Mr Khosa said:[8]
“ My Lady, I will now deal with D3’s absence from the proceedings in New Zealand. Before I proceed, my instructions from D3 very clearly are that part of the consideration he had of course was financial considerations, he couldn’t afford the trip. And I will come to that in a bit more detail in a moment.
But the other part was the advice given by his counsel at that time that these were merely committal proceedings, even if he didn’t go, there would be a second opportunity to cross-examine those New Zealand witnesses because the prosecution has to bring them back at the trial. I spoke to Mr Kwok last night and although he couldn’t sort of remember details of the correspondence and the letters, in general terms he told me that that was his understanding that the evidence-taking was merely part of the committal proceedings and it was not the end if they were not cross‑examined in New Zealand.”
10. At the hearing on 6 February 2015, the issue of the understanding of the various parties in respect of the use to be made of the evidence obtained in New Zealand was revisited by the judge:[9]
“ COURT: Right. Let me pause you and summarise the position. We now have got the 1st accused and the 2nd accused accepting that it was within their contemplation that the New Zealand hearing might be used for the trial proper if the prosecution is unable to secure the attendance of those witnesses, right?
MS DRAYCOTT: Yes.
COURT: Insofar as the 3rd accused is concerned I am a little unclear because, as I said, I have already mentioned some time ago that whether it is necessary for any evidence to be adduced. Insofar as the 3rd accused is concerned what I heard from Mr Khosa yesterday was that he has taken instructions from both the 3rd accused and from Mr Kwok, who was then acting for the 3rd accused, and his response to the court in relation to that question was that Mr Kwok did not understand it to be for the trial proper and he so advised the 3rd accused.
Mr Khosa also asked the court to look at the relevant correspondence, placing particular emphasis on the letter sent by the DOJ to the then solicitors acting for the 3rd accused saying that “You are not required to attend” and so on and so forth.”
11. Then, the following interchange ensued:[10]
“ COURT: That’s why I said I am in a little difficult position here. So you are saying that all the parties -- let’s put aside the 1st and the 2nd accused. Insofar as the 3rd accused is concerned you are saying that, no, what Mr Kwok told Mr Khosa was incorrect.
MS DRAYCOTT: Incorrect.
COURT: Then how do we go from there?
MS DRAYCOTT: If he wants to put forward that -- well, if the 3rd defendant wants to suggest that his counsel gave him erroneous advice then it’s up to him really to put that before you. It’s not before you at the moment. It simply comes from the Bar table.
COURT: Let me just clarify with Mr Khosa first. Mr Khosa, do I understand you correctly that yesterday you told the court that Mr Kwok had no understanding whatsoever about the New Zealand hearing being capable of adducing before the jury?
MR KHOSA: That’s what he told me.”
12. Of his conversation with Mr Kwok, Mr Khosa said:[11]
“ … I asked him very plainly. I said, “When you advised D3 that he doesn’t need to go, what was your understanding?” He said, “Well, that was just a committal proceedings so even if he didn’t go, it didn’t matter because those witnesses are going to come back, testify a second time at the proper trial.” ”
Mr Khosa added that is what the 3rd applicant had said as well.
13. For her part, Ms Draycott said “I think the only way to resolve this is to have Mr Kwok here.” Then, Ms Draycott explained why she took that position:[12]
“ Well, we have to call Mr Kwok. That’s the only way to deal with it, because I can’t accept that from Mr Kwok, because I know what was said in court.”
14. Then, the following exchange ensued between counsel and the judge:[13]
“ MS DRAYCOTT: Yes, I think we should get Mr Kwok to resolve it.
COURT: Yes, yes. So you’re saying that we should adjourn now so that Mr Khosa could get Mr Kwok to court or what?
MS DRAYCOTT: I’m afraid so, yes.
COURT: Yes. Mr Khosa?
MR KHOSA: My Lady, I don’t understand why I have to prove anything. It is for them to prove that everybody knew it. So what is the proof? In fact, everything points to the contrary.
MS DRAYCOTT: Well, I have proved it. I have proved that they were told in court and it’s quite clear that the other two counsel understood it perfectly well, and it’s because a suggestion has come from the Bench that one of the counsel didn’t understand that that we have this difficulty. So although the onus is on me, just for Mr Khosa to say, “Well, Mr Kwok didn’t understand it like that,” doesn’t remove the burden. He has to call evidence. I can show that on the papers I told everybody...”
15. Subsequently, Ms Draycott answered in the affirmative the judge’s enquiry:[14]
“ Insofar as the 3rd accused is concerned so you are relying on the part of the transcript which recorded you saying that this will be the one trip, right?”
16. Of the issue of evidence before the court, the following exchange ensued:[15]
“ COURT: … at this stage we only have Mr Khosa relating...
MS DRAYCOTT: In fact, yes.
COURT: ...the understanding of Mr Kwok to us .
MS DRAYCOTT: But I mean, well, what he is suggesting is that there is no evidence from our side.
COURT: I understand that, but just now you have done the exercise in taking the court through those...
MS DRAYCOTT: Yes, there is evidence, in my submission.
COURT: Yes.
MS DRAYCOTT: There is ample evidence to show that that was the situation and if you look at it from the other point of view it’s quite clear that Mr Harris and Mr King understood, and if they understood, why didn’t Mr Kwok?” [Italics added.]
17. The judge’s reference to “… the exercise in taking the court through” clearly included the fact that the judge had been referred to the transcript of proceedings on 9 January and 22 February 2013. On the earlier occasion, the magistrate was informed that David Wiltshire had declined to come to Hong Kong to give evidence in the Preliminary Inquiry and that it was intended to obtain his evidence in New Zealand pursuant to a letter of request. Ms Draycott informed the magistrate “…it will form part of these proceedings and, if successful, the evidence so collected would be available for the trial in the same form and there wouldn’t have to be a second trip.” [16] [17]
18. There is no doubt that Ms Draycott made it quite clear that she did not accept MrKhosa’s assertion that it was Mr Kwok’s understanding that the evidence taken from Mr Wiltshire in New Zealand was for purposes of the Preliminary Inquiry only and that the witnesses would be required to testify a second time at the trial. She said so in terms. Also, she submitted that it was necessary for evidence to be called to substantiate that assertion. For her part, the judge noted that all that was before her was what Mr Khosa related to be the understanding of Mr Kwok. Clearly, that was to be understood as a mere assertion from the Bar Table and not evidence.
19. The judge’s subsequent ruling on 17 March 2015 is entirely consistent with that understanding. She noted “When asked whether he intended to adduce evidence to support this claim, Mr Khosa submitted that the burden was on the prosecution.” The judge concluded “In the end… no evidence was placed before me by Mr Khosa regarding the claim he made in court.” [18]
20. Section 83 V provides that:
“ (1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-
…
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and
(c) subject to subsection (3) receive the evidence, if tender, of any witness.
(2) without prejudice to subsection (1) where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if—
(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(b) if it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”
21. In his judgment in this Court in The Queen v Tam Chung Shing & Others Silke VP considered the relationship between the two subsections:[19]
“ Sub-section (2) imposes a duty upon the court to receive further evidence, if the conditions of the sub-section are met, but, of itself, does not restrict the discretionary power of the court under sub‑s (1) to receive further evidence if the interests of justice require. The conditions in sub-s (2) are not imported into sub‑s (1) but a court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The court will not receive inadmissible evidence nor will it receive evidence under sub-s (1) if it is satisfied that it “would not afford any ground for allowing the appeal” or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process. (R v Lattimore (1976) 62 Cr App R 53; R v Parks (1962) 46 Cr App R 29; R v Stafford and Luvaglio (No 1) (1969) 53 Cr App R 1.)
22. In his judgment in the Court of Final Appeal in Mahabobur Rahman v HKSAR , with which all the other judges agreed, Chan PJ said:[20]
“ Under s. 83 V (1) (c) of the Criminal Procedure Ordinance (Cap. 221), the Court of Appeal, at the hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interest of justice, receive the evidence, if tendered, of any witness. The conditions to be satisfied before receiving such evidence are provided in s.83 V (2): the fresh evidence is likely to be credible; it would have been admissible in the courts below; it is relevant to an issue in the appeal; there is a reasonable explanation for the failure to adduce it in the courts below; and the court is satisfied that it would afford a ground of appeal.”
23. There is no dispute that the 3rd applicant was in a position to call evidence in the proceedings before the judge in February 2015, certainly by testifying himself or by calling Mr Kwok, to address the issues of the advice that he had been given by Mr Kwok of the use that could be made by the prosecution of the evidence obtained from David Wiltshire and/or his understanding of the same. He chose not to do so. As noted earlier, in his 3rd affirmation the 3rd applicant simply asserts that “…it did not seem necessary” to do so. He made that choice in the face of a clear judicial invitation to call evidence, if the claim was to be substantiated. Similarly, the 3rd applicant contended in his 3rd affirmation that he reached a similar conclusion in respect of the issue of his impecuniosity “… the correspondence already showed that I wanted to attend but that I had problems paying for counsel to attend.”
24. In my judgment, the 3rd applicant has advanced no reasonable explanation for his failure to adduce that evidence in respect of those several issues in the proceedings before the judge. The 3rd applicant has failed to satisfy the conditions of section 83 V(2).
25. Moreover, having regard to those conditions, in the broader context of admitting that evidence in the interests of justice, pursuant to section 83 V(1), I am not satisfied that it is appropriate to admit that evidence or the evidence of the letter dated 31 March 2017 from Hon & Co and the attached emails. In making that determination, I am mindful of the fact that I have allowed the 3rd applicant leave to appeal on ground 1 of the grounds of appeal against conviction, namely that, having regard to the judge’s finding that the 3rd applicant “might not have understood clearly that the New Zealand evidence might be used for the trial proper” together with the unresolved issue of the alleged impecuniosity of the 3rd applicant, the judge erred in admitting the deposition of David Wiltshire other than that limited to the production of his business records as exhibits.
Conclusion
26. Accordingly, I refuse to admit the evidence sought to be admitted by the 3rd applicant at the hearing.
(Michael Lunn)
Ms Charlotte Draycott SC leading Ms Joycelyn Ng, SPP(Ag), of Department of Justice, for the respondent
Mr Edward Fitzgerald QC leading Mr David Khosa and Ms Yasmine Zahir, instructed by Hobson & Ma, for the 3rd applicant (3rd defendant)
[1] The 3rd applicant’s 2nd affirmation, paragraph 9.
[2] The 3rd applicant’s 2nd affirmation, paragraph 26.
[3] The 3rd applicant’s 3rd affirmation, paragraph 9.
[4] The 3rd applicant’s 3rd affirmation, paragraph 10.
[5] The 3rd applicant’s 3rd affirmation, paragraph 11.
[6] Transcript; 3-6 February 2015, page 171 Q.
[7] Transcript; 3-6 February 2015, page 237 B-D.
[8] Transcript; 3-6 February 2015, page 171 J-P.
[9] Transcript; 3-6 February 2015; page 201 E-N.
[10] Transcript; 3-6 February 2015; page 202 E-M.
[11] Transcript; 3-6 February 2015; page 203 D-F.
[12] Transcript; 3-6 February 2015; page 203 O-P.
[13] Transcript; 3-6 February 2015, page 204 H-Q.
[14] Transcript; 3-6 February 2015; page 205 D-E.
[15] Transcript; 3-6 February 2015, pages 210 U - 211 G.
[16] Transcript; 3-6 February 2015; pages 9 T and 10 B.
[17] Transcript; 3-6 February 2015; page 53 F-H.
[18] 17 March 2015 Ruling, paragraph 62.
[19] The Queen v Tam Chung Shing [1989] 1 HKLR 47 G-I.
[20] Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20, paragraph 13.