HKSAR v. NGUYEN THI HOA

HCCP 56/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 56 OF 2017

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REASONS FOR DECISION ON LETTER OF REQUEST

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Introduction

1.  By originating summons dated 8 August 2017, the applicant made an ex parte application pursuant to section 77E of the Evidence Ordinance, Cap 8, for a Letter of Request to be issued to the proper judicial authority of the Socialist Republic of Vietnam for the examination of three witnesses.

2.  At the hearing of the ex parte application, I refused an adjournment of the proceedings that was applied for during the course of submissions, and at the conclusion of the hearing I refused the application.  I said that I would hand down my reasons in due course.  This I now do.

The power to issue a Letter of Request

3.  Section 77E reads:

“Issue of letter of request to obtain evidence in criminal proceedings

(1) Where it appears to the Court of First Instance that any criminal proceedings—

(a) have been instituted in Hong Kong; or

(b) are likely to be instituted in Hong Kong if evidence is obtained for the purposes of those criminal proceedings by virtue of an order made under this section,

the Court of First Instance may order that a letter of request shall be issued and transmitted in such manner as the Court of First Instance may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong, requesting such court or tribunal to assist in obtaining evidence for the purposes of those criminal proceedings.

(2) An order under this section shall specify the evidence to be obtained and, in the case of evidence to be obtained—

(a) by the examination of any person as a witness by any means (including by way of a live television link), the name and particulars of such person or such other particulars by reference to his office or employment as may be sufficient to ascertain his identity; or

(b) by the production of any document or thing, the nature of such document or thing or a description thereof.

(3) An application to the Court of First Instance for an order under this section may be made ex parte supported by affidavit—

(a) in respect of criminal proceedings referred to in subsection (1)(a), by the Secretary for Justice or any person charged with an offence to which such criminal proceedings relate; or

(b) in respect of criminal proceedings referred to in subsection (1)(b), by the Secretary for Justice.

(4) A letter of request ordered to be issued by the Court of First Instance under this section shall be issued by the Registrar of the High Court (in this Part referred to as the Registrar) under the seal of the High Court in such form as may be prescribed by rules of court, or if no such form is prescribed in such form as the Court of First Instance may direct.

(5) The power to make rules of court under section 54 of the High Court Ordinance (Cap. 4) shall include power to make rules of court with respect to this section (including the procedure to be followed) and for supplementing its provisions.

(6) A letter of request may be issued under this section in respect of an investigation or ancillary criminal matter as if the investigation or ancillary criminal matter, as the case may be, were criminal proceedings referred to in subsection (1)(a) and, in such a case, the provisions of sections 77F and 77G shall, with all necessary modifications, operate in relation to any such request as if any references in those provisions to criminal proceedings were references to—

(a) where paragraph (a) of the definition of investigation is applicable, a prosecution arising out of the investigation to which the request relates;

(b) where paragraph (b) of the definition of investigation is applicable, the ancillary criminal matter to which the request relates;

(c) in the case of an ancillary criminal matter, the ancillary criminal matter,

and the other provisions of this Ordinance, or of any other Ordinance, which relates, whether directly or indirectly, to the provisions of this Part shall be construed accordingly.

(6A) In subsection (2), live television link (電視直播聯繫) has the same meaning as in Part VIII.

(7) In subsection (6)—

ancillary criminal matter (附帶刑事事宜) means ancillary criminal matter within the meaning of section 2 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525);

investigation (偵查) means an investigation—

(a) into an offence against a law of Hong Kong; or

(b) for the purposes of an ancillary criminal matter.”

The nature of a Letter of Request

4.  By section 77E(1) of the Evidence Ordinance, Cap 8, the Court of First Instance is empowered to issue a Letter of Request, requesting a court in another jurisdiction to assist in obtaining evidence for the purposes of criminal proceedings, if those proceedings have been instituted or are likely to be instituted if such evidence is obtained.  Where criminal proceedings have been instituted, an application for a Letter of Request may be made ex parte supported by affidavit by either the Secretary for Justice or any person charged with an offence.

5.  The Court has a discretion whether to make an order that a Letter of Request be issued as sought.  The relevant statutory provisions are silent as to how the discretion should be exercised, but like all discretions, it must be exercised judicially and according to the relevant legal principles. 

6.  It is a mandatory requirement under section 77E(2) that such an order must specify the evidence to be obtained, setting out in the case of an examination of a person as a witness by whatever means, the name and particulars of the person or such other particulars by reference to his office or employment as may be sufficient to ascertain his identity; and in the case of the production of any document or thing, the nature or description of it.  The admissibility in criminal proceedings of evidence obtained pursuant to a Letter of Request is addressed in sections 77F and 77G. 

7.  In Liu Sung Wai v HKSAR (1997-1998) 1 HKCFAR 306, Bokhary PJ analysed and discussed the nature of the power under the relevant statutory provisions in relation to a Letter of Request.  He explained at 312H-J that a Letter of Request was aptly named:

“…for such a letter is one by which a court communicates to another court its request for that other court’s assistance. The requesting court seeks, for use within its own jurisdiction, evidence to be taken within the requested court’s jurisdiction. And if the appropriate request is made and met, then such evidence will be obtained: (i) under the auspices of the requested court; (ii) without any violation of or affront to the requested state’s sovereignty; and (iii) by means of the requested court’s facilities including, if necessary, its coercive powers.”

8.  By this description, it is clear that this is a request from one court to another court.  It is therefore not something that should be done lightly.  As dictated by international comity, respect and goodwill between courts of different jurisdictions is important and vital. 

9.  In deciding to grant a Letter of Request under section 77E(1)(a), a court should be satisfied that the statutory requirements have been met, and that there are good reasons for making the request, namely that there is a realistic and reasonable prospect of obtaining the evidence requested which is material and necessary for the purposes of the relevant criminal proceedings in this jurisdiction. 

Background

10.  The applicant is a defendant in criminal proceedings in the Magistrate’s Court who has been charged with three offences of fraud, contrary to section 16A(1)(a) of the Theft Ordinance, Cap 210, although I am informed that the prosecution is considering substituting these charges with a charge of dealing with property representing the proceeds of an indictable offence, contrary to section 25(1) of the Organised and Serious Crimes Ordinance, Cap 455. 

11.  In respect of the three fraud offences it is alleged that the applicant falsely represented to the respective three victims that she had concert tickets to sell, and induced them to pay her a sum of money for the tickets that she ultimately did not provide.  Charge 1 is alleged to have occurred between 3 and 14 March 2016, and the victim paid her $3,220.  Charge 2 is alleged to have occurred between 20 and 27 May 2016, and the victim paid her $3,000.  Charge 3 is alleged to have occurred on 5 August 2016, and the victim paid her $3,200. 

The prosecution case

12.  According to the brief facts, the prosecution case is that each victim at the relevant time posted on Twitter that they wanted to buy tickets for a particular concert.  The applicant made contact with each victim through Twitter and claimed that she had tickets for sale for the concert they wanted to attend.  She then sent the victim her bank account number at HSBC, requesting the victim to deposit the purchase price of the tickets into the account.  After the funds had been deposited, no tickets were provided and the applicant would block the victim from her Twitter account. 

The defence case

13.  The defence case, as submitted by Mr Joshua Choy, counsel for the applicant, is that the applicant was herself a victim of a scam.  He states that the applicant got acquainted with a Vietnamese national, Pham Van Luan (Pham), in early 2016 in Hong Kong.  They became close friends.  Pham told the applicant that he had a Vietnamese female friend in Hong Kong whose mother in Vietnam needed money for urgent surgery, but as a direct international transfer would take too long he asked if she could assist. It was arranged between them that Pham would first transfer a sum of Hong Kong currency into the applicant’s HSBC account, and upon confirmation, the applicant would instruct her younger brother in Vietnam to transfer the equivalent sum in Vietnamese currency into the bank account of the mother.  

14.  The bank account into which it is claimed that the monies were paid was in the name of Nguyen Hong Mai and the account number was 0491000044711 with the Joint Stock Commercial Bank for Foreign Trade of Vietnam.  Pham disappeared in August 2016. 

The nature of the application

15.  Mr Choy submits that it might be the case that the explanation given by Pham that his friend’s mother needed an urgent operation was a fabrication in order to utilise the applicant as a means to receive the proceeds of the frauds.  He explains that the present application is made to obtain evidence in Vietnam from Pham Van Luan, Nguyen Hong Mai and an officer of the Joint Stock Commercial Bank for Foreign Trade of Vietnam (Vietcombank) in relation to the bank account in the name of Nguyen Hong Mai, account number 0491000044711.

The case history

16.  On 1 October 2016, the applicant was arrested by the police in relation to the present offences.  She was charged for the three offences of fraud on 19 April 2017 and brought before the Magistrate’s Court. A one-day trial was fixed to take place on 14 August 2017.  On 3 August 2017, Mr Choy on behalf of the applicant wrote to the police requesting information about Pham.  On 14 August 2017, the solicitors on behalf of the applicant wrote to the Vietcombank requesting information about the bank transactions. 

17.  At the trial hearing on 14 August 2017, on the application of the applicant, the case was adjourned and re-fixed for mention on 11 September 2017.  It appears the basis of the adjournment was the proposed application for a Letter of Request. 

The present application

18.  I refused the application because it was clear to me that there was insufficient justification for it.  The applicant did not know, nor had she ascertained, the whereabouts of Pham or Nguyen Hong Mai. There was in fact doubt as to whether Nguyen Hong Mai exists.  The applicant did not know and was unable to say what evidence, if any, they could provide. The application for the obtaining of the evidence of these two in Vietnam is “a stab in the dark”.  The requirements under section 77E(2) were therefore not satisfied. 

19.  The application also sought bank records that have already been requested from the bank in question.  As yet, there has been no response.  In any event, the applicant appeared to have certain bank records that had been obtained in Vietnam.  This aspect of the request seemed to be premature and unnecessary.

20.  It is also to be noted that this application was made on the basis of the current charges, but as indicated, consideration was being given by the prosecution to substitute these charges. 

21.  A surprising feature in the application was that, according to the applicant, the applicant’s brother was responsible for the bank transactions that occurred in Vietnam.  When I inquired of Mr Choy whether a statement had been obtained from the brother, he informed me that one had not been obtained.  He also intimated to me that he was unsure whether the brother would give evidence at the defendant’s trial, even though he was the one, according to the applicant, who did the bank transfers in Vietnam. 

22.  For the above reasons, I refused the application.