HKSAR v. HUI KA LOK, SAM

HCCC 148/2020

[2021] HKCFI 3167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

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R U L I N G

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1.  This is an application pre-arraignment to amend the indictment. In its original form and dated 6 July 2020, the indictment contained the following:

“FIRST COUNT

STATEMENT OF OFFENCE

Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134 and s159G of the Crimes Ordinance, Cap.200

PARTICULARS OF OFFENCE

HUI Ka-lok, Sam, between the 22^nd day of August 2018 and the 27^th day of August 2018, both dates inclusive, in Hong Kong, together with HU Mingjie and OCHOA VILLEGAS Luis Carlos, attempted to unlawfully traffic in a dangerous drug, namely 22.680 kilogrammes of a solid containing 18.692 kilogrammes of cocaine.

SECOND COUNT

STATEMENT OF OFFENCE

Doing an act tending and intended to pervert the course of justice, contrary to Common Law and punishable under section 101I (1)  of the Criminal Procedure Ordinance, Cap 221.

PARTICULARS OF OFFENCE

HUI Ka-lok, Sam, on a day between the 1^st day of October 2019 and the 30th day of November 2019, at Lai Chi Kok Reception Centre, No. 5 Butterfly Valley Road, Kowloon, in Hong Kong, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he instructed OCHOA VILLEGAS Luis Carlos, a co-defendant in the same criminal proceeding, to write a letter to the Department of Justice for the purpose of exonerating the said Hui Ka-lok, Sam, with assertions that he knew to be untrue, namely:

1)  the said Hui Ka-lok, Sam did not know the reason and purpose of the said OCHOA VILLEGAS Luis Carlos purchasing the tools;

2)  the role of the said HUI Ka-lok, Sam was limited to driving the said OCHOA VILLEGAS Luis Carlos to purchase the tools; and

3)  the said HUI Ka-lok, Sam did not tell the said OCHOA VILLEGAS Luis Carlos the way of opening the container.”

It is sought to be amended as now shown in red:

“FIRST COUNT

STATEMENT OF OFFENCE

Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134 and s159G of the Crimes Ordinance, Cap 200

PARTICULARS OF OFFENCE

HUI Ka-lok, Sam, between the 22^nd day of August 2018 a date on or about the 4^th day of April, 2018 and the 27^th day of August 2018, both dates inclusive, in Hong Kong, together with Hu Mingjie and OCHOA VILLEGAS Luis Carlos, John Andres Gomez Henad, also known as Mono, LI Ka-kuen and other persons unknown, attempted to unlawfully traffic in a dangerous drug, namely 22.680 kilogrammes of a solid containing 18.692 kilogrammes of cocaine.

SECOND COUNT

STATEMENT OF OFFENCE

Doing an act tending and intended to pervert the course of justice, contrary to Common Law and punishable under section 101I (1)  of the Criminal Procedure Ordinance, Cap 221.

PARTICULARS OF OFFENCE

HUI Ka-lok, Sam, on a day between the 1^st day of October 2019 and the 30th day of November 2019, at Lai Chi Kok Reception centre, No. 5 Butterfly Valley Road, Kowloon, in Hong Kong, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he instructed OCHOA VILLEGAS Luis Carlos, a co-defendant in the same criminal proceeding, to write a letter to the Department of Justice for the purpose of exonerating the said Hui Ka-lok, Sam, with assertions that he knew to be untrue, namely:

1)  the said Hui Ka-lok, Sam did not know the reason and purpose of the said OCHOA VILLEGAS Luis Carlos purchasing the tools;

2)  the role of the said HUI Ka-lok, Sam was limited to driving the said OCHOA VILLEGAS Luis Carlos to purchase the tools; and

3)  the said HUI Ka-lok, Sam did not tell the said OCHOA VILLEGAS Luis Carlos the way of opening the container.

2.  There is no objection to that amendment by the defendant as to either count.

Count Two

3.  As to Count Two however, the Court has raised of its own motion whether the Second Count should be tried jointly with the First Count as it relates to matters post-offence and appears to be highly prejudicial to the defendant if heard by the same jury. Mr Turnbull submits that is properly indicted as it relates to the events which are the subject of Count One.  He submits the situation is akin to evidence of Flight or Lies, which often occur post event but which are admissible as against a defendant in trial.

4.  I have real concerns about the prejudicial effect upon proceedings of the matters raised under Count Two.  The prosecution alleges that the defendant, whilst on remand, sought to pervert the course of justice by having PW1 exonerate him, or at least, lessen the role he played and therefore his culpability.  That case is premised upon the basis that he had indeed taken part in the events under Count One in the manner suggested by the prosecution as opposed to merely seeking to have PW1 tell the ‘truth’ about his participation in line with the defendant’s own case.  It would have the effect of saying to the jury that they can be sure that he is guilty of Count One because they can look to what he did subsequently when he tried to escape liability by asking PW1 to exonerate him. That is evidence of a guilty mind.

5.  Count One is a very serious offence for which the defendant is looking at a sentence well in excess of 30 years’ imprisonment after trial.  In my view, the addition of Count Two, which occurred after this offending and was not part of the offending itself, prejudices the defendant in meeting the case against him under Count One.  It also complicates the trial and lengthens it, as it will be contested and has its own evidential difficulties.  If the defendant were to be tried on Count One alone and were to be acquitted of Count One, then there is the possibility that it would not be proper to proceed on Count Two in a separate trial.  Indeed, even if the defendant were to be found guilty of Count One, the Court wonders whether the prosecution would proceed on a trial for Count Two in a separate trial, in the face of the inevitable heavy sentence which the defendant will receive on conviction after trial for Count One.

Conclusion

6.  The evidence to support Count Two is highly prejudicial.  There is a risk that a jury, even one properly directed, could use that evidence to support their determination on Count One, which is a very serious offence.  In all the circumstances of this case, I order that Count Two is to be severed from the Indictment and to be tried separately after the trial under Count One.