HKSAR v. NG KIT-HING AND ANOTHER

DCCC 869/2019

[2020] HKDC 787

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 869 OF 2019

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DECISION

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1.  This is an application by the 2^nd Defendant (D2) for a direction to be given by this Court upon the following terms:

“Mr Chan Shui Yu, SPC50072 and PC5198 should look at the defence evidence submitted to the prosecution on 8 June 2020 to see whether they agree with it.  The above should be done individually in the presence of a police officer and the witness should give a brief statement as to whether they agree with the defence evidence within 1 month from the date of this direction.” (“the proposed direction”)

2.  The application is opposed by the prosecution and by the 1^st Defendant (D1).

3.  All parties agree that this application can be disposed of on paper.  Each party has filed its written submissions pursuant to the directions given by this Court.

The Charges and the Prosecution Case

4.  D1 and D2 each face one charge of causing death by dangerous driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap. 374.

5.  These charges arise out of a traffic accident that happened on 22 April 2019 at about 8:35 p.m. in the junction of Tai Chung Kiu Road (Tai Wai bound) and Fo Tan Road (Sha Tin Road bound).  D1 was the driver of a taxi while D2 was the driver of a public bus. The victim was a passenger on board of D1’s taxi.  As a result of the collision between the taxi and the bus, the victim sustained severe injuries to his chest and abdomen.  He was certified dead on the same day.

6.  The accident location was a traffic light controlled box junction between Tai Chung Kiu Road (Tai Wai bound) and Fo Tan Road (Sha Tin Road bound).  At the material times, D1 was driving his taxi along the left 3^rd lane of Fo Tan Road (Sha Tin Road bound), and D2 was driving his bus along the left 3^rd lane of Tai Chung Kiu Road (Tai Wai bound).  It is the prosecution’s case that both D1 and D2 caused the death of the deceased by dangerous driving because they had not complied with the traffic light signals governing their respective lanes.  The prosecution alleges that D1 drove against the red traffic light into the box junction, whereas D2 drove into the box junction when the traffic light against him was amber and about to change to red.[1]

The Defence Cases

7.  According to the Summary of Facts prepared by the prosecution, D1 and D2 each maintained under caution that the traffic light was green in his favour before he drove into the box junction.

8.  Apparently, what D1 and D2 had said under caution will be the basis of their defence since both Mr Caesar Lo, Counsel for D1 (“Mr Lo), and Mr Jackson Poon and Mr Summly Lee, Counsel for D2 (Mr Poon & Mr Lee) have stated in their respective submissions that the main or only issue in this case is who had gone through the red light.  It is therefore clear that D1 and D2 have not only put the prosecution to strict proof of the respective charges against them, but also put forward a cut-throat defence against one another if the traffic lights at the material times were working properly.

The witnesses relevant to the Application

9.  Mr Poon & Mr Lee on behalf of D2 apply for the proposed direction to be given against Mr Chan Shui Yu, SPC50072 and PC5198 (“the 3 Witnesses”) for them to “look at the defence evidence submitted to the prosecution on 8 June 2020 to see if they agree with it ….”. According to Mr Poon & Mr Lee, the “defence evidence” include the following:

(a)  a disc recording 4 videos of the traffic lights at the scene (“the 4 Videos”), and

(b)  a table analyzing the timing of the traffic lights and what the 4 independent witnesses have said (“the Table”).

10.  “The 4 independent witnesses” referred to by Mr Poon & Mr Lee are Mr Rene Charles Drapers, his wife Ma Chak-ying (Mrs. Draper), Mr Ng Tsz Long Ken and Ms Cheung Ka Kit.  Mr Poon & Mr Lee maintain that these 4 witnesses are “independent” because they were eyewitnesses located by the police at the scene.

11.  According to the Schedule of Prosecution Witnesses (“the Schedule”) attached to the Summary of Facts, and the summaries of evidence stated by Mr Kenny Chan, Counsel on fiat (“Mr Chan”) in his written submissions:

(a)  Mr Chan Shui Yu is listed as PW14 in the Schedule.  He is described as an “engineer of Transport Department”.  He will testify to the operation sequence of the 10 groups of traffic light at the accident junction (7 of them controlling vehicles and 3 of them controlling pedestrians) with reference to the traffic lights sequence chart of the location (“the Chart”)

(b)  SPC50072 is listed as PW8 in the Schedule.  He is described as “the arresting officer”.  He will give evidence about drawing sketch, taking photographs and arresting D2 at the scene.

(c)  PC5198 is listed as PW9 in the Schedule.  He is described as “the arresting officer”.  He was an officer present during the video-recorded interview of D2.

(d)  Mr Rene Charles Draper and his wife Ma Chak-ying are listed as PW2 and PW3 in the Schedule.  They are described as “eyewitnesses”. They will testify that they were sitting inside their car, waiting for traffic light, on the left first lane of Tai Chung Kiu Road (Ma On Shan bound) at the material times.  They heard the braking or bumping sound of the accident.

(e)  Mr Ng Tsz Long Ken and Ms Cheung Ka Kit are not listed in the Schedule, but their witness statements are included in the “unused materials”.  They were pedestrians.  Mr Ng heard the braking/bumping sound after crossing the road and walking with his son for a distance towards MTR station.  Ms Cheung heard the braking/bumping sound whilst crossing the road.

12.  Mr Poon & Mr Lee have not stated in their submissions by whom and when the 4 videos of the traffic lights at the scene were taken.  They say nothing on the differences between the Table and the Chart prepared by Mr Chan Shui Yu.  They have also not summarized the evidence that may be given by Mr and Mrs Draper, Mr Ng and Ms Cheung.  Nor have they stated in what ways the “defence evidence” will undermine the prosecution case and/or the case of D1.  Nevertheless, I shall assume that the “defence evidence” will advance the case of D2.

Grounds supporting the application

13.  Mr Poon & Mr Lee submit that it is necessary to make this application because Mr Chan Shui Yu refuses to look at the “defence evidence”, and the prosecution has not shown the “defence evidence” to SPC50072 and PC5198.  The prosecution raises no denial. On these facts, Mr Poon & Mr Lee submit that the proposed direction should be given with a view to (a) saving time so that the 3 Witnesses need not waste time in court, and (b) confirming who jumped the red light.

14.  Mr Poon & Mr Lee also contend that if any of the 3 Witnesses refuses or fails to look at the “defence evidence” and/or fails to disclose their views on the “defence evidence” before they are subject to examination or cross-examination in Court in the event that this Court gives the proposed direction, it may amount to contempt of Court, but this issue needs to be dealt with only when it arises.

15.  Mr Poon & Mr Lee further submit that if the proposed direction is given but objected to by the 3 Witnesses, they have the right to raise objection and the direction can be re-considered, and that for this reason, these 3 witnesses need not be made a party to this application, even though the proposed direction if given will affect them directly.

16.  In his opposition on behalf of D1, Mr Lo complains that D2 has never served the “defence evidence” upon D1, and maintained the position that the “defence evidence” will be served upon D1 only if the Court gives the proposed direction.  Mr Poon & Mr Lee do not refute Mr Lo’s complaint in their Written Reply.

17.  The trial herein is due to start on 1 February 2021, with 6 consecutive working days reserved.

Legal authority to make the proposed direction

18.  The first issue to decide is whether or not this Court has the legal authority or jurisdiction to direct the 3 Witnesses to comply with the proposed direction.  It is noted that none of them is a party to the proceedings herein (the parties being the Secretary for Justice, D1 and D2), and all of them have not yet submitted themselves to the jurisdiction of the District Court by taking the witness stand.

19.  Mr Poon & Mr Lee submit that this Court has the legal authority or jurisdiction to direct the 3 Witnesses to act according to the proposed direction pursuant to:

(a)  section 6(1) of the District Court Ordinance, Cap. 336; and

(b)  the inherent jurisdiction of the District Court.

20.  Mr Chan has not made any submission on this issue.  Mr Lo seems to agree with the submission of Mr Poon & Mr Lee.  However, jurisdiction cannot be conferred upon the District Court by the views or the agreement of the parties because it is a creature of the statute.

21.  Mr Poon & Mr Lee points to section 6(1) of the District Court Ordinance as the jurisdiction conferring statute.  It stipulates that:

“A judge sitting alone shall, subject to section 58 and to the rules, hear and dispose of proceedings in the Court and businesses arising out of the proceedings.”

22.  In my judgment, the reliance by Mr Poon & Mr Lee upon section 6(1) is totally misconceived. Section 6(1) does not confer jurisdiction.  It merely stipulates that proceedings in the District Court and businesses arising therefrom are to be determined by a district judge sitting alone unless the exceptions stated therein apply.  It simply rules out trials by jury or by a panel of judges in the District Court.

23.  On the issue of jurisdiction, section 3(2) of the District Court Ordinance provides that the District Court “shall have such civil and criminal jurisdiction and powers as are conferred upon it by this Ordinance and by any other enactment for the time being in force”. 

24.  Part 5 of the District Court Ordinance confers criminal jurisdiction upon the District Court. Section 74 provides that the District Court “shall have jurisdiction to hear and determine in accordance with the provisions of this Ordinance all such charges as the Secretary for Justice may lawfully prefer under the provisions of section 75 …”[2].

25.  Section 75(1) refers to a charge or complaint transferred to the District Court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance (Cap. 227), and section 75(1A) refers to a charge or complaint transferred to the District Court by a judge of the Court of First Instance under section 65F of the Criminal Procedure Ordinance (Cap. 221).  Upon transfer either way, the District Court “shall have jurisdiction and powers over all proceedings in relation to the offence therein alleged similar to the jurisdiction and powers of the Court of First Instance would have had” if the accused had been committed to that court or transferred from that court to the District Court for trial.

26.  Section 79(1) of the District Court Ordinance then provides that, “subject to the provision of this Ordinance and as may be prescribed, the procedure and practice for the time being in force in the Court of First Instance in relation to criminal proceedings therein shall, so far as the same may be applicable, be followed as nearly as may be in criminal proceedings in the Court …”, and the effect of section 79(2) is that the provisions of the Criminal Procedure Ordinance (Cap. 221) are applicable to the proceedings in the District Court except those provisions stated in Part 1 of Schedule 2 of the District Court Ordinance.

27.  The charges in this case are transferred by a magistrate to this Court pursuant to Part IV of the Magistrates Ordinance.  Hence, this Court has jurisdiction and powers over all proceedings in relation to the offences alleged similar to the jurisdiction and powers of the Court of First Instance would have had if D1 and D2 had been committed to that court for trial on indictment.  The procedure and practice stated in the Criminal Procedure Ordinance are therefore applicable subject to the limitation stated in section 79(2) of the District Court Ordinance.  It follows that the issue here is whether or not this Court is empowered by the Criminal Procedure Ordinance or any other legislation to give the proposed direction against the 3 Witnesses who are not parties to the criminal proceedings herein, and who have not yet submitted to the jurisdiction of the Court by taking the witness stand.

28.  Sections 34 to 38A of the Criminal Procedure Ordinance are all the provisions in this Ordinance that have a bearing on witnesses, but they only provide for the means to secure, and if necessary to enforce, the attendance of witnesses in court to give evidence.  There is no other provision within the Criminal Procedure Ordinance that empowers the District Court to direct a person who is not a party to the proceedings to perform any act before trial other than directing him to attend the Court to give evidence according to the statutory provisions stated therein. 

29.  In addition, none of the counsel herein has drawn my attention to, and I cannot find through my own research, any other legislation or practice direction that empowers this Court to do so.

30.  In the absence of any express statutory power, Mr Poon & Mr Lee seek to argue that this Court has the power to give the proposed direction because the District Court has inherent jurisdiction to make order to regulate the conduct of its proceedings. They cite paragraph 6 of the Ruling made by the then His Honour Judge Lok (Mr Justice Lok now) in the case of John Arthur Wright v Hampton Winter & Glynn and Another[3] to support their submissions:

“The jurisdiction and power of the District Court are similar to those of the County Court in England, in the sense that both courts are creatures of statutes which have limited jurisdiction. In Langley v North West Water Authority [1991] 3 ALL ER 610, the issue was whether the County Court has inherent jurisdiction to issue practice directions to regulate the conduct of cases in its own court, and the English Court of Appeal accepted that the County Court has such kind of inherent jurisdiction.”

31.  Mr Poon & Mr Lee submit that since the District Court has inherent jurisdiction to make order to regulate the conduct of its proceedings, this Court will have the legal authority or jurisdiction to give the proposed direction because the proposed direction aims at saving time of the Court, and enabling this Court to hear and dispose of the trial expeditiously.

32.  The case cited by Mr Poon & Mr Lee is a civil case, but I accept that the principles stated by Mr Justice Lok are equally applicable to the criminal proceedings in the District Court.  It is therefore important to bear in mind that the criminal jurisdiction of the District Court is also limited, and its limits are defined by the District Court Ordinance and any other legislations that confer jurisdiction upon the District Court.

33.  That is not to say that the District Court has no inherent jurisdiction.  It plainly has.  However, it does not mean that the District Court can do anything it thinks fit in the absence of any express statutory power on the ground that it is empowered by its inherent jurisdiction to do so.  In Connelly v Director of Public Prosecutions[4], Lord Morris of Borth-y-Gest described the nature of inherent jurisdiction as follows:

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”[5]

34.  In my view, there is no reason why the scope of the inherent jurisdiction of the District Court should not be defined in similar terms.  In other words, while the District Court does possess inherent jurisdiction, its inherent jurisdiction is limited to such an extent that it only has such implied powers to do what are necessary to enable it to act effectively within the jurisdiction expressly conferred upon it by legislations.  As the District Court is mandated to hear and dispose of proceedings transferred to it according to the legislations, it follows that the District Court has the inherent jurisdiction or implied power to make orders or give directions to regulate the conduct of these proceedings.

35.  Mr Poon & Mr Lee say that the proposed direction aims at saving court time and disposing of the trial expeditiously because the proposed direction if given will ensure that the 3 Witnesses will not waste time in Court to examine the “defence evidence”.  They submit that since the proposed direction will facilitate the effective and efficient conduct of the court proceedings, this Court must have the inherent jurisdiction or implied power to give the proposed direction against the 3 Witnesses.

36.  However, Mr Poon & Mr Lee has not addressed one fundamental issue, namely, none of the 3 Witnesses is a party to the proceedings herein, and all of them have not yet submitted themselves to the jurisdiction of the District Court by taking the witness stand.  They are at this point of time outside the jurisdiction of the District Court and not subject to its authority.  For this reason, the District Court simply has no power, be it express or implied, to give any direction that is lawfully binding upon them.  On this ground alone, this application must fail.

37.  Even if the District Court has inherent jurisdiction to give directions to the 3 Witnesses, there is still the question whether or not there is valid ground for giving the proposed direction.  According to Mr Poon & Mr Lee, the proposed direction will save court time and expedite the trial process.  But is the District Court given carte blanche to give whatever direction it thinks fit so long as the directions will or may save court time and increase trial efficiency?  Generally speaking, if defence counsel has made full preparation and is physically fit as well as mentally alert on the day of trial, he will be able to cross-examine prosecution witnesses efficiently and effectively, and to put issues to be determined succinctly before the court, thereby saving court time and enabling the court to adjudicate efficiently.  If so, does the Court have the inherent jurisdiction to give direction to defence counsel that he must do nothing other than studying the case paper between 9 a.m. and 9 p.m., and then sleep no later than 10 p.m. on the day before trial to ensure that he has the best performance at trial?  The answer must be an emphatic “No”.

38.  In my judgment, even if the District Court has the inherent jurisdiction to give direction to both parties and non-parties to the proceedings before it with a view to regulating the conduct of its proceedings, it can only direct the parties and the non-parties to perform such acts that they are obliged to perform as a matter of law, or at least as a matter of accepted court practices.  For instance, the District Court will have the inherent jurisdiction to direct counsel to file written submissions before the date of actual court hearing because counsel is under a duty to assist the court to hear and dispose of the proceedings in the most effective and efficient way.

39.  In the present application, Mr Poon & Mr Lee ask this Court to direct each of the 3 Witnesses to perform two acts: (1) to look at the “defence evidence” individually in the presence of a police officer, and (2) to give a statement stating whether he agrees with the “defence evidence” within one month from the date of the direction. 

40.  In my view, none of the 3 Witnesses is obliged either by law or by court practice to perform either or both of these acts.  The duty of a witness is simple.  He has to give evidence honestly according to the best of his recollection. No more and no less is required of him.  He is never obliged to study the evidence of other witnesses.  In fact, there are good reasons why he should not do so.  The following passage appears at page 232 of Cross & Tapper on Evidence (13^th Edition) with cases cited to support each of the propositions:

“The aim is to secure reliable testimony, and while an oath and opportunity for cross-examination are important, a number of other supplementary rules have developed. Witnesses testify as individuals even though called by a party, and should not collaborate, be coached, nor rehearsed, nor shown the witness statements of others before testifying.” (Italics added for emphasis)

41.  It is noted that the “defence evidence” includes the witness statements made by Mr and Mrs. Draper who are witnesses to be called by the prosecution, and those by Mr Ng and Ms Cheung who may be called by D2.  Since these persons will or may testify at the trial herein and their evidence will affect not only the prosecution and D2 but also D1, that is all the more reason for not directing the 3 Witnesses to look at the “defence evidence” so as to preserve the integrity of their evidence, unless there are very good reasons for this general rule not to apply.

42.  Mr Poon & Mr Lee says that the proposed direction if given will save trial time and expedite the trial process.  However, integrity of the testimony of a witness cannot be sacrificed for the sake of saving court time and trial efficiency. Furthermore, I have grave reservation that trial time will be saved.  It is because even if the 3 Witnesses know the “defence evidence” in advance so that Mr Poon & Mr Lee can cross-examine them without the need to explain the “defence evidence” to them in court, Mr Poon & Mr Lee still have to explain the “defence evidence” to the trial judge who knows nothing of that kind in advance of the trial.

43.  That leads to the basic question: is this application by D2 really made for the purpose of saving court time and expediting the trial process?  If it is really made for these laudable purposes, why is it that the 4 Videos and the Table of the “defence evidence” are not served upon D1?  It is no excuse for Mr Poon & Mr Lee to say that D1 is also a defendant on trial enjoying the right to remain silent so that it will be inappropriate to ask D1 whether or not he agrees with the “defence evidence”.  It is because they can simply ask D1 to look at the “defence evidence” in advance so that trial time needs not be wasted for D1 to understand the “defence evidence”.  They may even ask D1, as in the case of the 3 Witnesses, to state in writing if he agrees with the “defence evidence” but making it clear to D1 at the same time that he is not obliged to do so unless he wishes to.  In my view, D2’s refusal to serve the “defence evidence” upon D1 unless this Court allows his application points strongly to the conclusion that this application is made for tactical reason for the benefit of D2’s defence against the prosecution and/or D1 rather than for the purpose of saving court time and expediting the trial.

44.  The conclusion that this application is made for tactical reason can also be readily deduced from the fact that D2 applies for the further direction that each of the 3 Witnesses shall make a statement stating whether they agree with the “defence evidence”. If this direction were aiming purely at saving court time and increasing trial efficiency, Mr Poon & Mr Lee would have indicated that they would accept whatever said in the statement of the 3 Witnesses after considering the “defence evidence”.  Of course, this is not their stance.  Mr Poon & Mr Lee will surely dispute the statements made by the 3 Witnesses pursuant to the proposed direction if their evidence is detrimental to D2’s case.  In my view, their purpose of seeking this particular direction is clearly not for the sake of saving court time, but for the purpose of knowing in advance what these 3 Witnesses will say about the “defence evidence”.

45.  It is of course permissible for Mr Poon & Mr Lee to find out in advance of the trial from the 3 Witnesses what they will say about the “defence evidence”.  The law is clear.  There is no property in a witness.  So long as there is no question of tampering with the evidence, it is open to the legal representative of either party to civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage of the proceedings, whether or not that witness has been interviewed or called as a witness by the other party: Harmony Shipping Co. S.A. v Saudi Europe Line Ltd.[6] However, it must also be borne in mind that a witness is under no obligation to attend such an interview: Kwan Fung Kam v The Attorney General[7].

46.  From these legal principles, it is clear that if Mr Poon & Mr Lee want to know in advance of the trial whether or not all or any of the 3 Witnesses will agree with the “defence evidence”, they are entitled to approach and interview them to find out the answer, but the 3 Witnesses have equally the right to decline to be interviewed, and not to answer the enquiries.  Before the application, Mr Poon & Mr Lee know that Mr Chan Shui Yu refuses to consider the “defence evidence”.  Mr Chan Shui Yu is acting within his rights.  Mr Poon & Mr Lee also complain that the prosecution refuses to ask SPC50072 and PC5198 to look at the “defence evidence”.  Mr Kenny Chan for the prosecution has explained in his submissions why he considers that the exercise will not help saving time, and emphasizes that the agreement or otherwise of the 3 Witnesses with the “defence evidence” are merely their opinion and not conclusive to the issue who had jumped the red light.  In my view, if the prosecution for whatever reason is not going to show the “defence evidence” to the two officers and ask them to state their views, it is up to Mr Poon & Mr Lee to approach and interview the two officers.  If these two officers agree to be interviewed, Mr Poon & Mr Lee get the answer they want; and if the two officers decline to be interviewed, that is the end of the matter.

47.  For these reasons, I am of the view that Mr Poon & Mr Lee cannot use the Court as a vehicle to compel the 3 Witnesses to disclose to them what the 3 Witnesses will say to the “defence evidence” under the excuse of saving court time and expediting the trial process, when the 3 Witnesses are under no obligation to do so in the first place.  I do not intend to make a specific finding, but it seems to me that this application is or on the verge of an abuse of the court process.

48.  Furthermore, in my view, the proposed direction is problematic in a number of areas.

49.  First, Mr Poon & Mr Lee ask this Court to direct the 3 Witnesses to look at the “defence evidence”.  However, it has not yet been proved to this Court that the “defence evidence” is relevant, admissible and relevant, nor has it been tested by the prosecution and/or D1.  Mr Poon & Mr Lee have not disclosed who took the 4 Videos and when they were taken.  Presumably these 4 Videos were not taken on the same day of the accident in question, and how these videos taken subsequently may challenge the evidence of the 3 Witnesses is unknown.  As far as the evidence of the 4 witnesses described to be independent by Mr Poon & Mr Lee is concerned, as Mr Lo rightly points out, it is not yet known (1) if these witnesses will ultimately testify in court, (2) if their evidence is consistent with their witness statements, and (3) if their evidence will stand after cross-examination.  Mr Poon & Mr Lee submit that the evidence of these 4 eyewitnesses must be reliable because they are independent eyewitnesses located by the police at the scene.  However, Mr Lo submits that it is apparent from reading the respective statements of Mr Ng and Ms Cheung that their evidence is inconsistent with that of Mr and Mrs. Draper, and Mr Poon & Mr Lee makes no denial in their Written Reply.  In any event, even if these 4 witnesses have no motive to lie, it is everyday experience that an honest witness may well be a mistaken witness.  In my view, it is imprudent and indeed wholly improper for this Court to direct the 3 Witnesses to consider the “defence evidence” when this Court is yet to accept the “defence evidence” to be relevant, admissible and reliable.

50.  Second, if this Court directs the 3 Witnesses to consider the “defence evidence”, and the “defence evidence” is different from that of the 3 Witnesses in any respect, the Court may create an impression in the mind of the 3 Witnesses that the Court is doubting their evidence and preferring the “defence evidence”.  It will not be unreasonable for them to ask in their mind, if the Court is not doubting their evidence, why should the Court ask them to consider the “defence evidence” which differs from theirs in all or some respects?  In light of these apparent criticism from the Court, they may either wittingly or unwittingly change their evidence to bring their evidence in line with the “defence evidence”, but the changes may not reflect the truth, and are not evidence given by them according to the best of their recollection.  This Court should not put pressure of this kind or whatever kind on any witness, and pressure of whatever magnitude on any witness is simply unacceptable.  If it is suggested that the Court may tell the 3 Witnesses at the time of giving the proposed direction that the “defence evidence” may or may not be correct and that they are at liberty to accept or reject the “defence evidence”, it will make the Court an object of ridicule because it is telling the 3 Witnesses to consider evidence that it has no clue at all on its veracity.

51.  Third, if the proposed direction is given, the effect is that the case of D2, presumably supported by the “defence evidence”, will be put to the 3 Witnesses even before they start giving evidence.  But the sole or main issue at trial is which one of D1 and D2 had jumped the red light.  The proposed direction if given will be totally unfair to D1 because D2 will be able to run his case before the 3 Witnesses both pre-trial and during trial, and D1 has only one chance to do so at the trial.

52.  Fourth, it is difficult to ensure that the 3 Witnesses will understand the “defence evidence” in the same way as Mr Poon & Mr Lee.  Mr Poon & Mr Lee submit that the witness statements of Mr and Mrs Draper, Mr Ng and Ms Cheung can be provided to the 3 Witnesses.  However, the 3 Witnesses may not interpret these witness statements in the same way as Mr Poon & Mr Lee.  Furthermore, as rightly pointed out by Mr Chan and Mr Lo, the opinions of the 3 Witnesses on the witness statements of Mr and Mrs Draper, Mr Ng and Ms Cheung are inadmissible, and it is for the Court to decide what evidence is to be accepted.  In my view, if Mr Poon & Mr Lee want to know whether the 3 Witnesses will agree with the “defence evidence”, they should have ascertained from the statements of the 4 independent witnesses what facts have been proved by them in support of D2’s case, and put forward their findings of facts to the 3 Witnesses and ask them if they agree with their findings.  However, Mr Poon & Mr Lee have never done so.

53.  Fifth, if it is permissible and proper to direct the 3 Witnesses to consider the “defence evidence”, why is it that they have to give a statement on whether they agree with the “defence evidence” within one month of the date of the direction?  The 3 Witnesses have already given their witness statements that enable the prosecution, D1 and D2 to know what they are going to testify in Court.  If they are asked to consider the “defence evidence” which is or may be different from the version of events that they have already alluded to, why is it that they should not be given as much time as possible to consider the evidence coming from other sources?  In my view, these 3 Witnesses may state their view on the “defence evidence” as late as when they are testifying in court.

54.  Sixth, the proposed direction if given will require each of the 3 Witnesses to consider the “defence evidence” and prepare another witness statement.  These are positive obligations for each one of them to perform, meaning that they have to spend their personal time and effort to comply with the direction from this Court.  They are directly affected by the proposed direction if given, and it may be onerous to discharge the obligations.  In addition, once this Court gives the proposed direction, and if they refuse or fail to comply with it, they may face the consequences of contempt of court as Mr Poon & Mr Lee has suggested.  If so, it will be running against any notion of justice that each person directly affected by the direction has not been made a party to this application by D2 and be given a right to be heard before the direction is given.  It is no comfort to say that if any of the 3 Witnesses objects to the direction, he may raise the challenge after the direction has been given and the direction can then be re-considered.  In my view, if this Court adopts this attitude, it will once again become an object of ridicule in that it is giving a direction knowing that the direction is not binding and subject to objection, and yet takes no step to resolve the possible objection before giving the direction.

Conclusion

55.  In my judgment, this Court has no express or inherent jurisdiction to give the proposed direction against the 3 Witnesses. 

56.  Furthermore, even if this Court has the express or inherent jurisdiction to give the proposed direction, for reasons that have already given, this Court will not give the proposed direction against any of the 3 Witnesses. 

57.  This Court is also satisfied that dismissing this application will cause no prejudice to D2.  If D2 through Mr Poon & Mr Lee wishes to know before trial what the 3 Witnesses will say about the “defence evidence”, they may approach and interview the 3 Witnesses themselves, subject always to the requirement that no attempt should be made to tamper the evidence of any of the witnesses.  In any event, D2 will have ample opportunities to challenge the evidence of the 3 Witnesses at trial through cross-examination of the witnesses by Mr Poon & Mr Lee on the basis of the “defence evidence”, and if court time has to be used for such an exercise, so be it.  On the other hand, dismissing this application will ensure the integrity of the evidence of the 3 Witnesses, and will not put D1 at risk to have an unfair trial.

58.  The application by D2 for the proposed direction to be given against the 3 Witnesses is dismissed.

59.  Mr Chan for the prosecution has submitted that if D2’s application is granted for the sake of saving court time, only Mr Chan Shui Yu should be asked to view the 4 Videos to confirm if the timings of the 4 traffic lights at the scene are consistent with the Chart.  Mr Poon & Mr Lee ask that in the event their application for the proposed direction is dismissed, they will ask for an alternative direction along the line suggested by the prosecution.  

60.  However, as a matter of fact, Mr Chan Shui Yu has refused to consider the “defence evidence”.  For the reasons already given, I find that he has the right to do so. 

61.  Hence, the application by D2 for the alternative direction to be given against Mr Chan Shui Yu is also dismissed.