HKSAR v. CHAN YIK ZEE, ELSIE AND OTHERS

HCCC 111 & 282/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE NO. HCCC 111 & 282 OF 2000

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Ruling upon application in connection with
Section 70 of the Evidence Ordinance (Cap. 8)

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1. This application, which is made prior to arraignment, has arisen in this way.

2. On 14 April 2000, D4 was committed to this court for trial without an inquiry in accordance with section 80c(4)(b) of the Magistrates Ordinance.

3. On 19 September 2000, D1, D2 and D3 were committed to this court for trial following upon a preliminary inquiry in accordance with section 80c(2) of that Ordinance.

4. All four defendants were jointly charged with and subsequently jointly indicted upon a consolidated indictment for an offence of conspiracy to defraud (contrary to common law) allegedly committed between 1 May 1991 and 27 June 1993 in Hong Kong.

5. A pretrial review was listed before me on 11 May 2001 with a trial date set for 3 July 2001.

6. At the inquiry, prior to the committal of D1, D2 and D3, evidence was given by a number of prosecution witnesses over a period of about 6 weeks. Mr Egan appeared for D1 and D3 and Mr Duncan appeared for D2 at the inquiry. Mr Bell appeared for the prosecution.

7. The first witness called by the prosecution at the inquiry was Chen Jun Yi. His evidence commenced on 8 August 2000 and concluded the following day. He was cross-examined by Mr Egan but not by Mr Duncan. His deposition runs to some 68 pages.

8. At a second pretrial review held on 24 May 2001, I indicated that the defendants would be arraigned on 3 July and a jury would be empanelled on 5/6 July with a view to the trial commencing before that jury on 9 July.

9. In the event, on 3 July, Mr Bell told me that the witness Chen Jun Yi could not be found - he was missing. I adjourned the case until 9 July to enable the prosecution to clarify the position concerning the witness and to make further enquiries. On 9 July, I was told by Mr Bell that the witness could still not be traced and that consideration was being given - in the event that further enquiries were unsuccessful - to either applying for a lengthy adjournment or seeking to proceed in accordance with Section 70 of the Evidence Ordinance. I adjourned the case further to 16 July.

10. On 16 July, Mr Bell informed me that the witness was still not available and that he was believed to be in a 'foreign jurisdiction'. He submitted an affirmation of Cheung Ka Po Miranda (a senior ICAC investigator) which stated, inter alia, that:

"..... On 25th April 2001 ICAC officers served a witness summons on Mr Chen in Central to ensure his attendance at trial ..... Mr Chen did not exhibit any reluctance to attend the trial to give evidence. However that was the last occasion when ICAC officers had contact with Mr Chen.

Mr Chen had maintained domestic premises for his own and his family's use in both Hong Kong and Macau since 1998. The last-known place of residences in Hong Kong were at Chatham Road and Mei Foo Sun Chuen in Kowloon. Whereas, his last-known residence and office in Macau were at Taipa and Rua Da Praia Grande.

In early June 2001 ICAC attempted to contact Mr Chen through his Hong Kong portable phone numbers but could not find him.

On 22nd June 2001 the ICAC received a letter posted on 21st June 2001 purporting to be written by Mr Chen stating that he would not attend court to give evidence at the trial .....

Following receipt of the letter ICAC officers attempted to contact Mr Chen through his residential and portable phone numbers in Hong Kong and those in Macau. All numbers were found to be disconnected or unavailable.

ICAC officers visited his last known ..... residences in Hong Kong at Chatham Road and Mei Foo Sun Chuen in Kowloon. Both premises were found vacated. Enquiries with his relatives and associates revealed that Mr Chen and his family were living at the rental flat at Mei Foo Sun Chuen. They had moved away from it in May 2001.

Mr Chen's relatives and friends all stated that they did not notice and were unaware of any serious health problem on the part of Mr Chen.

With the assistance of the Macau authorities Mr Chen's last known address in Macau was visited. It was clear from the condition of the flat at Taipa that it had been empty for some time. Furthermore, it was revealed that Mr Chen was no longer working at the office address at Rua Da Praia Grande.

Immigration Department records reveal that Mr Chen had left Hong Kong for Macau on 4th May 2001 and has not returned. However no record was found in Macau to show that he had entered there.

Mr Chen's daughter, aged 7, left her primary school in Hong Kong on 23rd May 2001 terminating her registration on the same day. She also left with her mother for Macau on the same day. No entry record in Macau was found for the daughter's entry there. However Macau records show that the mother departed Macau for Taiwan on 27th May 2001.

In summary, all the way through the investigation and court proceedings Mr Chen appeared to be a willing witness until his sudden departure a few weeks before the trial, shortly to be followed by his wife and child. No explanation has been received for this sudden move, other than unspecified ill health which is not supported by medical evidence or by the observations of his family and associates.

The prosecution is presently unable to produce Mr Chen as a witness at the trial by reason his absence from Hong Kong ....."

11. The letter from the witness referred to in this affirmation reads as follows:

"Recently I have been going hard with various matters. As I am suffering from quite a number of illness, I am annoyed and it's difficult to control my temper. Furthermore, as I am in low water, my worry grows day by day.

In addition, the old illness on my leg has recurred for several times, hence, I am unable to move to anywhere. It has been, though, examined and treated by many doctors, it shows no improvement at all. I am just like having fallen in the abyss of misery.

Chan's (Elsie CHAN) Trial will begin in July. Likely, it will be very difficult for me to testify in court. So, please make the necessary arrangements in advance. Thanks for your kind forgiveness."

12. Mr Bell applied, in those circumstances, for the trial to be adjourned and taken out of the list. After hearing argument from Mr Egan (for D1 + D3) from Mr Duncan (for D2) and from Mr Tse (for D4) each of whom opposed the application I granted the application - gave detailed reasons for doing so - and after consultation with counsel I adjourned the trial until 18 April 2002 allowing 2 days for argument in the event that an application under Section 70 of the Evidence Ordinance was to be made and with a view to empanelling a jury on 22 April.

13. Yesterday morning Mr Bell informed me that the witness was still unavailable and he submitted a second affirmation from Cheung Ka Po Miranda in confirmation. Inter alia it is stated in that document that enquiries have revealed that the witness left Macau for the Philippines on 5 May 2001 - he entered Los Angeles in the USA on 11 May - and he returned to the Philippines on 21 May. Enquiries have also revealed that the wife of the witness arrived in Australia on 9 June.

14. Section 70 of the Evidence Ordinance reads as follows:

"Admissibility in evidence in criminal proceedings of deposition of person dead, etc.

Whenever it is proved by the oath of any credible witness, or in any other manner whatsoever it appears, to the satisfaction of the Court of First Instance, that the Secretary for Justice, or other person conducting a prosecution on behalf of the Crown, is unable to produce at the trial any person as a witness, in consequence of the death of such person, or of his absence from Hong Kong, or of the impracticability of serving process on him, or of his being so ill as not to be able to travel, or of his being insane, or of his being kept out of the way by means of the procurement of the person accused, or of his being resident in a country the laws of which prohibit his absenting himself therefrom, or which he refuses to quite after application made to him in that behalf or because he cannot be found at his last-known place of residence in Hong Kong; and if it also appears from the certificate of the magistrate or other officer hereinafter mentioned that such person was examined before a magistrate, or other officer to whom to cognizance of the offence appertained, and that the usual oath was administered to him prior to his examination, and that the examination was taken in the presence of the person accused, and that he, or his counsel or solicitor, had a full opportunity of cross-examining such person, and that the evidence so taken was reduced into writing and read over to and signed by him and also by the magistrate or other officer as aforesaid, so much of the evidence as would have been admissible, if the said person had been produced and examined before the said court in the ordinary manner, shall be read and received in evidence."

15. The first thing to be said in relation to that section and the present case is that D4 was not present at the preliminary inquiry at which the witness gave evidence. He had already been committed for trial - on paper - and he thus had no opportunity either by himself or by his counsel or solicitor to cross-examine the witness unless it is to be boldly suggested that any accused who is to be committed to the High Court for trial can request an inquiry and, if he does not do so, he is deemed in the words of the section to have deprived himself of the opportunity of cross-examination. Mr Bell does not suggest that.

16. Before going any further I should say that I am not aware of any reported Hong Kong case in which the provisions of Section 70 have been applied save the case of R v Tang Wai Tong [1979] HKLR 479 which is referred to in paragraph VI [5] of Bruce and McCoy's Criminal Evidence in Hong Kong in which it was the defence, and not the prosecution, who sought its application, and R v Wai Man [1982] HKC 139 in which the Court of Appeal expressed the view that by reason of the specific wording of the section the defence could not make such an application.

17. I might also add that there seems to me to be a world of difference between a case where a witness has died, has become insane or who has been threatened by an accused after making a deposition and one where the witness has simply taken it upon himself to leave the jurisdiction.

18. At the time when Section 70 was enacted there was no such thing as a 'paper' committal. All committals followed upon an inquiry at which an accused had the opportunity (if he chose to avail himself of it) of cross-examining any witness.

19. From my researches into some of the authorities concerning the application of Section 70, or similar provisions in other jurisdictions (albeit some employing the words 'may', or 'shall be lawful' rather than 'shall'), the following principles are apparent.

(a) There is a discretion to exclude the evidence .....

R v Collins [1938] 26 Cr. App. R 177

That case concerned the United Kingdom Criminal Justice Act 1925 and the problem which arose could have been avoided by an adjournment. It was not and the trial proceeded purely by the reading of depositions.

"It seems to follow that on the conditions laid down in the section being complied with, the depositions of all the witnesses may be read to the jury. But this Court is quite satisfied that such a course as was adopted in the present case was not intended by the statute and could never have been contemplated by Parliament. The result of it was to deprive the jury of the inestimable advantage - the one great advantage to which those who uphold the system of trial by jury always point - of the opportunity of not only seeing the witnesses who give evidence and hearing what they have to say, but also of observing their demeanour in the witness-box, ..... and, further, of hearing the witnesses cross-examined by the accused, if he so desires. Nothing of the sort took place here.

In our view, it was never contemplated by this Act, which was passed simply with the object of saving time and expense in cases where no possible injustice could be done to anybody, that it should be used to abolish in such a case as this the ordinary method of trial by jury.

It may well happen in another case, if this procedure is allowed, that an accused person himself may go into the witness-box and may call witnesses before the jury in support of his defence, and it is difficult to imagine anything more embarrassing for a jury than to be asked to decide on such a serious matter as the conviction of a fellow-being, when they have, on the one hand, merely the sworn statements of persons whom they have never seen or heard, and, on the other hand, evidence given in the witness-box." [per Humphreys J]

(b) ..... except where no possible injustice could be done to anybody.

R v Linley [1959] Crim. LR 123

That case also concerned the operation of the Criminal Justice Act 1925 (Section 13(3)). The witness was an elderly man in poor health unfit to attend the trial. Ashworth J held that the words 'may be read' in the section (relating to depositions) were indicative of a discretion to exclude and that any disadvantage to the prosecution by reason of exclusion should be weighed against the grave risk of injustice to the accused if the evidence were read.

(c) The test for exclusion of the evidence is simply whether it would be unfair to a defendant to admit it.

Christopher George Blithing [1983] Cr. App. R 87

Again this was a case concerned with the 1925 Act where a witness had died before trial.

"A judge's duty is to ensure that a defendant receives a fair trial. He is unlikely to provide him with that unless he exercises his discretion to control the admission of evidence by applying the right test.

In such a case as this where a heavily prejudicial statement (which could not be challenged by cross-examination) was sought to be admitted, a plea for exclusion ought to succeed if the judge concludes that it would be simply unfair to a defendant to admit it. ..... If he had applied the right test, we do not see how he could have avoided excluding [the] statement, the contents of which were undoubtedly heavily prejudicial and, we suspect, in all probability caused the jury to convict the appellant." [per Watkins LJ]

(d) If a defendant is unable to cross-examine a witness at trial a jury cannot be in a position to evaluate the truth or accuracy of his deposition.

R v O'Loughlin and Another [1988] 2 All ER 431

That case concerned both the Criminal Justice Act of 1925 and the Police and Criminal Evidence Act of 1984 (Section 78(1)).

The allegation was that the witnesses had been kept out of the way 'by means of the procurement of the accused or on his behalf'.

"When one seeks to look ahead to the consequences of the present trial one cannot fail to observe that the depositions in this case are documents of considerable length, they go into considerable detail, they are not entirely clear, there are conflicts between them and, of course, there is nothing whatsoever to support them. Therefore, it is prudent to ask, .... how possibly could a jury exercise its judgment to decide that the contents of those depositions were true and accurate? How could they ever become sure in their minds that that evidence should be accepted? It seems that it would be well-nigh impossible for counsel to present any arguments to the jury and, indeed, it is difficult to envisage the form which the summing-up would take in trying to guide the jury as to how they should exercise their judgment to resolve any conflict of evidence. It would, in my judgment, result in a travesty of a trial and it is not surprising that it has never happened before, certainly in my experience or in any instance to which counsel could possibly refer me. Those are all matters which would make, at the very least, a trial conducted in this way unfair to the defendant.

But this is a balancing exercise, and I must take account in exercising my discretion also of the interests of the Crown, ..... Also into this balance must go the fact that what I am being asked to admit here in relation to these two women are depositions, that is evidence which has been given on oath and which has been subjected to some cross-examination at least. As I say, those are matters which I acknowledge must weigh heavily against the defendants. Nevertheless, doing the best I can I have come to the conclusion here that to allow this trial to proceed, when the only evidence against O'Loughlin would be the depositions of these two women, would be to produce a trial which could be regarded as an unfair trial, and even that I would be allowing proceedings to take place which actually were not a trial at all but a travesty of a trial. So in those circumstances, even though with reluctance, I would exercise my discretion against allowing this application." [per Kenneth Jones J]

(e) The test of fairness is not the mere absence of the witness.

R v Gera [1978] 2 NZLR 500

That case which concerned the New Zealand Summary Proceedings Act of 1957 (Section 184(1)) arose when a complainant witness was out of the jurisdiction.

"Of course in the context of s.184 the test of fairness will not necessarily, or even usually, be the mere absence of the witness. If that were the position the purpose of the statutory provision would be stultified. Instead the test must be related to all the relevant circumstances surrounding the particular case and which might sufficiently suggest that to allow the written material to be put forward in the absence of the witness would have the effect of tilting the balance unfairly against the accused and so cause the proceedings to pass beyond the limits of a fair trial. No doubt that situation will arise on occasion from the absence of the witness alone - by reason of the impact or significance of the evidence in the whole environment of the trial, including the nature of the charge; or perhaps by reason of the circumstances surrounding the failure or inability of the witness to be present. In England, for example, the Court of Criminal Appeal considered the implications of an analogous statute and held expressly that there is an inherent jurisdiction to refuse to allow a deposition to be read where it seemed imperative that the witness should be available for cross-examination: R v Schaffer [1960] Crim LR 124. In that regard there are the cases where it will seem difficult, or unlikely, for potential unfairness to the accused to be removed, or dissipated, by an appropriate warning in the summing up concerning the risks that can be associated with reliance on uncontested deposition evidence: see R v Currie [1969] NZLR 193, 211. However for present purposes it is undesirable to do more than indicate that the discretion to exclude such evidence remains, that its limits must necessarily be determined by the Judge when dealing with individual cases, that he would always need to give close attention to the important general purpose of s.184 when considering whether or not to exercise the discretion and that the onus of persuading him that fairness required exclusion of the evidence would rest upon the defence." [per Woodhouse J]

(f) A trial judge has power at common law to refuse to allow the prosecution to adduce in evidence a deposition even though it is highly probative of the offence charged; that neither the inability to cross-examine the deponent nor the fact that the deposition contained ..... the only evidence against the accused would justify excluding the deposition, and the discretion to do so should only be exercised in exceptional circumstances when the judge considers that in view of the quality of the evidence it would be unsafe for the jury to rely on it ....

Richard Scott and Another v Reginam

Winston Barnes and Others v Reginam [1989] WLR 18 May 924

In those cases which concerned the Justices of the Peace Jurisdiction Act (Laws of Jamaica Vol. 9) Section 34 the witnesses, who purported to identify the defendants, died before trial.

"The deposition must of course be scrutinised by the judge to ensure that it does not contain inadmissable matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury." [per Lord Griffiths]

(g) Where the statutory provisions are satisfied a deposition may be read; they do not provide that it may be tendered as a documentary exhibit

Wayne Robert Mendham

Thomas Leonard Foster [1993] 71 A Crim. R 382

That case concerned the Crimes Art 1900 (NSW) s. 409 and a witness who was too ill to attend the trial.

(h) If the testimony appears to be inherently reliable and there is nothing in any other evidence or in the surrounding circumstances casting any doubt on its trustworthiness, the Court might properly conclude ..... that cross-examination would not have made any relevant difference. In such a case it could not reasonably be said that the absence of an opportunity to cross-examine at the preliminary hearing would affect the fairness of the ensuing trial.

R v L [1994] 2 NZLR 54

This was another case concerning the Summary Proceedings Act 1957 (NZ) and one in which the complainant witness died prior to trial.

(i) It is of great importance that the jury should have had the opportunity to assess the demeanour of the witness in question. The potential unfairness .... in the jury not having that opportunity was such as to require the exclusion .... in the interests of justice.

Adrian Neil Lockley

Lisa Mary Corah [1995] 2 Cr. App. R 554

This case involved a retrial for an offence of murder and the operation of the Criminal Justice Act 1988 when a witness decamped.

"Weight must be given to the fact that Mrs Freestone had given evidence on oath and had been cross-examined and that material was available to demonstrate that her account of the circumstances in which she gave information to the police was untrue. Mr Emmerson submits that the Court should have regard to the quality of the witness's evidence and the evidence of her bad character. It was submitted that her bad character is now confirmed by what she has said in interviews on television, quite unconnected with this case, in which she admitted being a persistent shoplifter and boasted of her ability to deceive the staff at large stores. The information is proved to have been given to the police (in spite of Freestone's denials) in order to obtain bail. Evidence was given in the hope, which was fulfilled, of obtaining transfer to an open prison. Mr Emmerson also relies on the fact that some aspects of the account allegedly given to her by Corah cannot be true but has to accept that other aspects are consistent with other evidence in the case.

We cannot accept that the character of the witness is an overriding factor in considering whether the admission of her evidence is in the interests of justice. It may in some situations be in the interests of justice to admit the evidence of a person of bad character, particularly when the bad character can readily be demonstrated. Mrs Freestone's evidence was, if believed, important evidence in this case. The evidence was however about a cell confession made in the absence of any other witnesses. Such evidence is always treated with caution by the courts. Further, while it can be said that it is a big step from being a persistent shoplifter to inventing a confession to murder, the witness has demonstrated and indeed boasted a remarkable ability to deceive. Her claim is that her dishonesty is confined to a particular activity and she has indignantly denied other suggestions made against her. In these circumstances it was of great importance in this case that the members of the jury should have the opportunity to assess the witness for themselves, including her demeanour and the manner in which she gave her evidence. The potential unfairness to the accused in the jury not having that opportunity was in the view of the Court such as to require the exclusion of the transcript in the interests of justice. Its admission involved a wrong decision on a question of law involving potentially important evidence and Corah's appeal must be allowed and her conviction quashed." [per Pill J]

(i) Where the evidence of a crucial witness was read to the jury .... it was incumbent on the judge .... to ensure that the jury fully realized the drawbacks imposed on the defence .... the judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence .... as they might if it were tested in cross-examination .....

McCoy December 10 1999 [Archbold News Issue 6 July 2000]

20. Mr Bell's helpful written skeleton argument in support of his application reads as follows:

"Under S70, provided that certain conditions are met, the evidence given in the magistrates court "shall be read and received in evidence" where the prosecution are unable to produce the witness at the trial by reason, inter alia, of his absence from Hong Kong. The terms of the section are mandatory and the court has no discretion to refuse to admit the evidence (except to the extent that it retains a discretion to exclude evidence of live witnesses if eg the prejudicial value of the evidence outweighs the probative value).

In the present case:

i) it is proved by the affirmation of Miranda Cheung dated 14th July 2001 that P cannot produce PW1 at the trial;

ii) the affirmation proves that the reason he cannot be produced is due to his absence from Hong Kong and/or because he cannot be found at his last-known place of residence in Hong Kong;

iii) the record of proceedings in the court below shows that the necessary formalities were complied with: see certificate of the magistrate at p116(68).

In the circumstances it is respectfully submitted that the deposition must be read and received in evidence in this court."

21. He then proceeds to highlight a number of the authorities of which I have made mention before concluding, in relation to the 4th defendant that:

"D4 was not present at the committal proceedings and neither he nor his lawyers therefore had a full opportunity of cross-examining PW1. Accordingly in his case one of the conditions for reading the deposition has not been fulfilled.

However this presents no problem since the jury can be directed that the deposition is not evidence against D4, just as it can direct that one Defendant's cautioned statement is not evidence against another Defendant. No prejudice is caused to D4 because PW1 gives no prejudicial evidence against him.

Alternatively, as a last resort, if the Court feels that D4 is unfairly prejudiced by the admission of PW1's deposition against D1, D2 and D3 it has power to order severance of his trial from that of the other Defendants."

22. And finally that:

"(i) The present is the very kind of case for which S70 was intended;

(ii) the conditions in section 70 have been satisfied and there is no statutory discretion to exclude the deposition in the case of D1, D2 and D3;

(iii) there is no basis for exercising the common law discretion to exclude the evidence as being more prejudicial than probative;

23. As will become apparent I intend no disrespect to the arguments of Mr Egan (for D1 and D3) by stating them shortly. He accepts the principles derived from the cases of Scott, Barnes and others (see para. 19(f) above), R v L (See para. 19(l) above) and Lockley and Corah (see para. 19(i) above) but argues that by reason of what has recently been learned from civil proceedings involving the witness there are at least grounds for suggesting that he is a co-conspirator with these defendants in fraud and accordingly it is essential, if the defendants are to receive a fair trial, that they have an opportunity to cross-examine him about those matters of which they were not aware at the time of the committal proceedings.

24. Mr Egan accepts that what he has learned concerning those civil proceedings is not evidence against the witness but he argues that it forms part of what are exceptional circumstances and it calls very much into question the credibility of the witness and, hence, the quality of the evidence contained in his deposition.

25. In response to that argument Mr Bell says that the only matter recently learned from the civil proceedings is that the witness is now joined as a defendant and that the reason why he is now so joined is because of facts which were known to the defendants in this criminal case prior to their committal and, had they chosen to do so they could have cross-examined the witness about those matters at the committal inquiry.

26. Further, says Mr Bell and in the same context, the content of the witness statements filed in the civil proceedings which now allege fraud on behalf of the witness was known to these defendants prior to their committal.

27. On behalf of D2 Mr Duncan does not oppose the prosecution's application to proceed by way of Section 70.

28. On behalf of D4 Mr Tse opposes the application firstly upon a technicality, concerning the committal magistrate's certificate. There is, with respect, nothing in that argument at all. It finds no support from either Mr Egan or Mr Duncan on whose behalf Mr Tse appears to have advanced it, his client being in a wholly different position to that of D1, D2 and D3 by reason of the method of his committal.

29. Mr Tse then proceeds to argue that if the deposition of the witness is adduced into evidence before the jury his client will suffer prejudice by reason of the nature of the charge of conspiracy which he faces, which prejudice he suggests could not be removed by judicial directions. Whilst I can see the force in that argument, albeit inevitably in some conjecture, it is not necessary for me to consider it because of the absence of the condition precedent to the operation of Section 70 in D4's case which, in my view, in D4's case is conclusive against the operation of that section.

30. It seems to me that the questions which arise from Mr Bell's application to invoke Section 70 are several and include:

(a) Have the conditions precedent to the operation of the section been met?

The answer to that question, or so it seems to me, must be no. Whilst the prosecution can undoubtedly prove its inability to produce the witness in consequence of his absence from Hong Kong; and whilst it can undoubtedly prove that the witness was examined upon the usual affirmation in the presence of D1, D2 and D3 who by themselves or by their counsel had a full opportunity to cross-examine him; and whilst it can undoubtedly prove that the evidence of the witness was put into writing, was read over to the witness which writing he then signed, the prosecution cannot prove that D4 or his counsel had the opportunity to cross-examine the witness because he plainly did not.

Unless I accept Mr Bell's argument concerning the position of D4, or unless I sever his name from the indictment this application to employ Section 70 must fail.

(b) Leaving aside the position of D4 for the moment what is the meaning in Section 70 of the words "shall be read and received in evidence"? Are they, as Mr Bell argues mandatory and thus permitting of no statutory discretion to refuse to admit the evidence before a jury as would be the case if the section said "may be read and received in evidence"?

I have taken time to consider this question in the light of the authorities which I have cited and in particular Potvin (supra) and I also bear very much in mind the title to the section which reads:

"Admissibility in evidence in criminal proceedings of deposition of person dead etc."

That title, again so it seems to me, is explanatory of the purpose of the section which is to make statutorily admissible, that which is not otherwise admissible.

Wilson J (at page 306 of the judgment in Potvin) says this:

"I believe that the preferable interpretation of s. 643(1) is that the word "may" is addressed to the trial judge and confers on him or her a statutory discretion to prevent any unfairness that could otherwise result from a purely mechanical application of the section. Whatever may have been the situation prior to the 1955 revisions, whether the use of "shall" contemplated an absolute right in the party who invoked the section and met its requirements to have the prior testimony admitted or not, I do not believe that it makes any sense to construe the substituted "may" as conferring a discretion on the parties. The discretion which the parties have is whether to invoke the section or not. Once a party invokes it and meets its terms, it is for the judge to decide whether the prior testimony should be admitted at the trial. This interpretation makes sense in the context of the purpose of the provision and avoids the dangers of "an inflexible rule" referred to by Wigmore in Wigmore on Evidence, op. cit., §1371:

.....

But, though this doctrine is a practically inevitable corollary of the general principle, it is worthwhile to note the possible consequences of its looseness, as warnings against an inconsistent strictness shown in other applications of the general principle. For on the one hand, testimony already subjected to a cross-examination, however thorough, by a former party not in privity with the present opponent is excluded (§1388 infra); while, by the present doctrine, testimony never actually tested at all, in consequence of the carelessness, fraud, or incompetence of counsel, or of a privy in interest, is admitted, if merely the opportunity so to test it had existed. On the whole, both err in attempting to create an inflexible rule. No doubt, usually a mere opportunity to cross-examine can be trusted as a sufficient safeguard; and no doubt, usually a mere opportunity to cross-examine can be trusted as a sufficient safeguard; and no doubt, usually only a privy interest would apply a sufficient cross-examination. But room should be allowed for the exceptional instances which will certainly occur. The trial court should have a discretion."

In a judgement, dissenting only as to the direction of the word 'may' in the Canadian Statute, La Forest J said this (at page 314):

"However, I take a different view of s.643(1) of the Criminal Code and, in consequence, of the source of the discretion to exclude the evidence permitted to be adduced under that provision.

As I read s.643, it is not directly addressed to the prosecution or the judge, although it has, of course, implications for how they perform their duties. The provision is directed at a certain type of evidence. It makes it admissible. The parties to a trial may, therefore, invoke the provision if they wish. But the provision does not provide that the evidence previously taken shall be accepted; it provides, rather, that it may be read as evidence. This leaves room for the operation of the ordinary principles of the law of evidence, including the rule that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value:

....."

I respectfully agree with that latter view and I would apply it to Section 70 whether the word used is 'may' or 'shall'.

In my judgment the word 'shall' which is used in the section is not mandatory and can never have been intended by the legislature to have been so. The situation might be different had the word 'must' been employed by the draftsman and had the title not preceded the section. In my view the word 'shall' in this context is permissive or directory and not mandatory and it certainly does not deprive the court of its duty to ensure a fair trial for an accused.

31. Further with regard to questions (b) and (c) above it is not without interest that whilst Section 70 was enacted, I think, at the beginning of the 20th Century, Section 77 (which deals with 'admissibility in criminal proceedings of evidence obtained pursuant to letter of request' and which was enacted in 1984) makes it a specific condition for admitting such evidence that:

"No unfairness is likely to occur in those criminal proceedings consequent upon the depositions ..... being admitted under this section."

32. Having given all of these matters the must anxious consideration I conclude as follows:

(1) There is an absolute bar to applying Section 70 in the trial of D1, D2, D3 and D4 because D4 did not have a full opportunity of cross-examining the witness.

(2) That cannot be overcome (as Mr Bell suggests) by a judicial direction to the jury after the deposition has been read because in these circumstances the section does not permit the reading of the deposition in the first place.

(3) This particular bar may be lifted if D4 is severed from the indictment. The prosecution does not apply for severance and nor does D4, who wishes his trial (which has been long delayed through no fault of his own) to proceed forthwith.

(4) I am not prepared to order severance in those circumstances simply as a means to enable the prosecution to circumvent the specific provisions of Section 70. That would not, in my view, amount to an exceptional circumstance justifying "separate trials for two or more defendants who are jointly charged with participation in one offence" [See Archbold (2002 Edition) at paragraphs 1-176 and 1-177].

(5) Having come to that view it is not, I think, strictly necessary for me to consider the remaining argument which is, leaving D4 aside, whether or not D1 and D3 can receive a fair trial if the committal deposition is simply read to the jury.

(6) That said, I am deeply troubled by the question for all of the reasons set out in this ruling, and given the circumstances of the departure (and the method of that departure) from Hong Kong of the witness; and, given the apparent importance of his being cross-examined before the jury on matters relevant to his credibility I am satisfied that to permit the prosecution to proceed by way of Section 70 against D1 and D3 may operate a very real injustice; that they could not receive a fair trial and that no direction from me to the jury could change that position unless such direction was to the effect that by reason of all of the circumstances of the case including the witness' departure and his possible motives for that departure the jury should ignore his evidence totally.

33. It therefore must follow even if all of the conditions precedent to the operation of Section 70 had been fulfilled in respect of all of the defendants - and not just three of them - that I would exercise my discretion by refusing the application of the prosecution.