Case Detail

HCCC 75/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2017

________________________

BETWEEN
	HKSAR
and
	LAM HING CHIT (林慶哲)	Accused

________________________

Before: Deputy High Court Judge Bruce SC in Court

Date of Hearing: 25 July 2017

Date of Ruling: 26 July 2017

_____________________________

RULING ON ADMISSIBILITY (NO 2)
AND ISSUES OF HEARSAY

_____________________________

1. At the commencement of the trial, counsel for the accused indicated that he objected to the reception into evidence of certain components of the proposed testimony of Lui Mei Yi as appears in her witness statement in the depositions. I heard Counsel for the accused and the prosecution and, on the 2^nd day of the trial before the jury, I made certain enquiries of Counsel. I then held that the impugned passage in the witness statement was admissible. I undertook to publish my reasons later. These are those reasons.

2. The Accused faces an indictment alleging conspiracy to traffic in dangerous drugs from August to early September 2015. The particulars of the conspiracy alleged in terms of participants is that it is alleged that the accused conspired with Lui Mei Yi and persons unknown.

3. Lui Mei Yi, the alleged co-conspirator, is for all practical purposes, the be-all and end-all of the prosecution case. She provided a witness statement on 21 June 2016 and that is part of the depositions.

4. In her witness statement in the depositions, Ms Lui described how she entered into a conspiracy with the accused to traffic in dangerous drugs. If the assertions in the witness statement of Lui Mei Yi are to be believed, the initial component of that conspiracy involved her selling drugs at the instance of the accused. She goes on to say that she also became involved in the receipt of drugs imported from the mainland which appear to have been for the purpose of supplying the retail operation. In this regard, an additional character came into the picture: Fu Chai. There are two main features about Fu Chai if the witness statement of Ms Lui is to be believed. The first is that she says that Fu Chai was the boss of the accused. The plain implication of what she says is that he was the boss of the accused in the conspiracy in which she and the accused were involved. The second component was that Fu Chai appeared to be concerned with the importing side of the conspiracy and what appears to be wholesale distribution. In this regard, at paragraph 8 of her witness statement, she says:

“ 8. About one month after [the accused] and I carried out drug trafficking activities, I received dangerous drugs from [the accused]’s boss nicknamed Fu Chai (I do not know his full name) and deliver dangerous drugs for him. Usually the dangerous drugs received from Fu Chai were in larger amounts. I did it for him three or four times. Usually Fu Chai would contact me in advance when he had dangerous drugs for me to collect. The procedure of collecting the goods was the same every time. As far as I know, Fu Chai arrange someone to source the dangerous drugs, usually K Chai, on the mainland. When a source was found, the dangerous drugs would be packaged.”

The paragraph then goes on to describe the mechanics of the matter. Counsel for the accused makes the point that nowhere does the accused appear in this relationship. He says that this could be an independent operation. However, there is material in the statement of Ms Lui that points to the accused being involved in this side of the business and that therefore the accused, Fu Chai and Ms Lui were in the same conspiracy to traffick. The rest of her statement — leaving aside the impugned passage (see below) — statement, if it is to be believed, points to a conspiracy which had a number of facets: retail distribution, wholesale distribution and importation from outside Hong Kong. In answer to questions I posed to counsel for the accused I was informed that this specific passage in paragraph 8 is not objected to.

5. The objection to the passage which is said to inadmissible hearsay may be seen in paragraph 11 of Ms Lui’s deposition. That paragraph is as follows:

“ I want to add that on 2015-09-02 when I met Fu Chai in Mong Kok area, Fu Chai that a batch of dangerous drugs K Chai would be delivered from the mainland to Hong Kong on the afternoon of 2015-09-04 and told me to meet him in MTR Sham Shui Po Station at 3 PM that day so that he could arrange me to collect the goods. At that time, he also told me that [the accused] and another girl Ye Mingzhu were responsible for packing the dangerous drugs K chai on the mainland. They used tinfoil and adhesive tape to wrap the bags containing the dangerous drug K chai, and then conceal them in the other goods and deliver them to Hong Kong through transportation companies. At some time after 12 AM on 2015-09-04, I came across Fu Chai at the McDonald’s in Sin Tat Plaza in Mong Kok. He reminded me to take out the bag of dangerous drugs K Chai temporally kept in my home before I went to collect the goods in Nam Cheong Street, Sham Shui Po on the afternoon of 2015-09-04 so that he could give them to the client(s).” (emphasis added)

The underlined part of the passage is that which is the subject of objection. When I raised the question, Counsel for the accused told me that the underlined passage was the only basis of his objection.

6. It is conceded by the prosecution that the underlined passage is hearsay because it is relied on by the prosecution not merely because it was said but also because it is true. However, the prosecution submits that the passage includes acts or declarations in furtherance of the conspiracy. It would be, so the prosecution submits, therefore admissible as an exception to the hearsay rule.

7. It is a matter of basic principle that the out of court acts and declarations of a party to a conspiracy or joint enterprise in furtherance of that conspiracy or joint enterprise are capable of being admissible against the person who did the act or made the declaration and also the other members of the joint enterprise. In order for such evidence to be admissible, there must be reasonable, independent evidence that the latter was a party to a conspiracy or joint enterprise: R v Au Shui-yuen Alick [1993] 2 HKC 219; HKSAR v Vivien Fan (2011) 14 HKCFAR 641. To be admissible, the impugned hearsay statement must be one made in the course of and in furtherance of the conspiracy. In that regard, it is inadmissible if it is mere narrative. In order for evidence of acts and declarations in furtherance of the conspiracy or joint enterprise to be admissible against a person other than the person who did the act or made the declaration, there must be reasonable independent evidence that the latter was a party to a conspiracy or joint enterprise: R v Au Shui-yuen Alick [1993] 2 HKC 219; R v Lai Ka-to, Oscar & Anor CACC 229/1992; HKSAR v Pang Tat-shing [1998] 1 HKC 604; R v Mahutoto [2001] 2 NZLR 115 §34; HKSAR v Cheng Sui Wa [2003] 4 HKC 571; HKSAR v Vivien Fan (2011) 14 HKCFAR 64. This formulation of the “reasonable evidence test” test is derived from the Australian (R v Ahern (1988) 165 CLR 87, 34 A Crim R 175 (HCA)) and New Zealand approach (R v Buckton [1985] 2 NZLR 257; R v Qiu [2008] 1 NZLR 1). The adoption of this test is in preference to the requirement for prima facie evidence which was the test expressed in R v Au Shui-yuen Alick (above). In HKSAR v Vivien Fan, Bokhary PJ indicated that there is probably not a great deal of difference between the two tests. The sense I get from the authorities is that the requirement is somewhat more than a prima facie test and reflects the fact that the consequence of the application of the reasonable evidence rule is that evidence becomes available to the prosecution which is potentially powerful evidence and implicates the person named even though he or she may not have been present at the time when the impugned declaration or act took place. The determination may also alter the scope of the conspiracy. In the instant case there is a very real issue for determination as to whether Fu Chai was a member of the conspiracy with Ms Lui and the accused and Fu Chai’s declaration to Ms Lui in paragraph 11 would substantially widen the nature of the conspiracy and the practical criminal responsibility of the accused in the event that he was convicted. Against that, there are two factors which possibly point in the other direction: (1) the determination of admissibility usually precedes at the commencement of or in early the early stages of a trial; and (2) the ruling could be revisited later in the trial if the evidence either does not come up to what was expected or is, perhaps, even radically different from that which appeared at the time of the ruling. I take the concept of reasonable evidence to imply a standard slightly higher than a mere prima facie case.

8. Reasonable evidence requires evidence of the existence of conspiracy and, in this case, the participation of Fu Chai in the conspiracy: HKSAR v Vivien Fan (above); R v Mahutoto (above) at §34. That conspiracy may be inferred from the evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement: R v Ahern (1988) 165 CLR 87; R v Au Shui-yuen Alick (above); Oei Hengky Wiryo v HKSAR (No 2) [2007] 10 HKCFAR 98. In other words, the reasonable evidence may come from the acts or declarations of other conspirators but if that is inadmissible hearsay, then such hearsay may not be used against the accused to prove the truth of what was said but rather only to establish that what was said was, indeed, said. This is the point made by Yang CJ in R v Au Shui-yuen Alick (above) where he made the point that the reasonable evidence may come from the mouth of the co-conspirator who testified for the prosecution. (The Court of Appeal in R v Au Shui-yuen Alick (above) actually use the prima facie test rather than the reasonable evidence test but that does not affect the application that case to of the present issue.)

9. Counsel for the accused submitted that there is no reasonable evidence that Fu Chai is in the same conspiracy as the accused. The case for the prosecution is that there is clear material in the witness statement in the depositions from Ms Lui which clearly points to the active involvement of Fu Chai in the conspiracy in which she and the accused were involved and which is capable of being reasonable evidence of the participation in and involvement of Fu Chai in the conspiracy with the accused and Ms Lui, there is also evidence external to her testimony which is also capable of being reasonable evidence of the participation in and involvement of Fu Chai in that conspiracy.

10. Starting from the basics, there is reasonable evidence that the accused is in a conspiracy with Ms Lui as to the retail distribution of ketamine. The real issue is whether there is reasonable evidence to support the proposition that the conspiracy includes Fu Chai as a member of it. If Fu Chai is not a member of the conspiracy in which Ms Lui says that she and the accused are in then the impugned statement that she attributes to him is inadmissible against the accused. If Fu Chai is a member of the conspiracy, then I have to consider whether the impugned statement is a declaration in furtherance of the conspiracy or is mere narrative.

11. Before determining whether there is reasonable evidence that Fu Chai was in the same conspiracy as Ms Lui and the accused it is right to note the implications of that for the scope of the conspiracy on the premise that Fu Chai is a member. The obvious implication of this is that the conspiracy is much, much wider than the mere retail distribution of drugs and the storage of drugs to which Ms Lui testifies. The effect of the inclusion of the acts attributable to Fu Chai would expand the scope of the conspiracy to include acts of cross-border trafficking.

12. The prosecution submits that reading the statement as a whole and, in particular, question and answer 10 supports the conclusion that both the accused and Fu Chai are in the conspiracy because both were a party to instructing Ms Lui to pick up drugs on the date that she was arrested. The prosecution submits that the second non-underlined passage in paragraph 11 (above) also supports this conclusion circumstantially. The support is circumstantial because it has Fu Chai asking Ms Lui to take something out of the stock of ketamine at her residence for distribution. She got that stock from the accused to store temporarily. The inference which is clearly open is that if it is true that Fu Chai said what is attributed to him then his access to the stock of the accused stored with Ms Lui clearly points to him in an agreement with the accused in the trafficking in ketamine.

13. In addition, there is evidence external to the statement of Ms Lui which supports the conclusion that Fu Chai is in the same conspiracy as Ms Lui and the accused. The first item is the fingerprint and a palm print of the accused found on the sticky side of some tape which was used to wrap the dangerous drugs found in a carton delivered to Fu Chai and which Ms Lui picked up on 4 September 2015 at Nam Cheong Street in Sham Shui Po. A carton was delivered by a driver of a transportation company to that address. The carton came from the mainland. Fu Chai had, according to Ms Lui, asked her to take delivery of the carton and pay $120 to the driver. Fu Chai stood in the shadows. The specific location of the fingerprints is circumstantial evidence that the accused was involved in the packing operation of drugs delivered across the border to Fu Chai (and the minion Ms Lui). The obvious conclusion that in this regard the accused was involved in the supply chain feeding the wholesale drugs operation. It is evidence external to the statement of Ms Lui which confirms and important component of the impugned statement (the accused was involved in packing the ketamine)

14. Furthermore, the first letter between the accused and Ms Lui that the prosecution proposed to adduce has the accused admitting that he was called by, of all persons, Fu Chai, to “tidy” (or arrange for the tidying of) the residence of Ms Lui shortly after she was arrested. Precisely why Fu Chai would be asking the accused to undertake that given that it was the accused who placed the drugs there suggests strongly that Fu Chai was concerned about those drugs and that in itself suggests strongly that it was not just the accused but also Fu Chai who had an interest in those drugs. Otherwise why call the accused? Why would the accused respond as he said in the letter that he did? Why would the accused be telling Ms Lui about this? The connections between these people and circumstances and the actions reported in the letter as those taken circumstantially point to not just a connection between Fu Chai and the accused but that they were in a conspiracy to deal in dangerous drugs and even if that conspiracy had been brought to an end it had to be covered up. That is a reasonable explanation for the call, the reported response and decision to tell Ms Lui by letter. While the accused may have another explanation for this letter, it seems to me to be at least capable of being compelling circumstantial support for Fu Chai and the accused being in the same conspiracy as Ms Lui.

15. Finally, some slight external support comes from the fact that the delivery note which accompanied the carton containing the drugs and which is connected to the carton by having the same serial number affixed to the side of the carton, bears the date 2 September 2015. That is the date upon which the accused travelled to the mainland from shortly before 1 am to shortly after 2 pm. While this is a remarkable coincidence the authorship of the delivery note is not the subject of evidence and this is of insufficient evidence, either taken by itself or in combination with other matters and, accordingly, I propose to disregard it.

16. In my view, there is reasonable evidence to support the conclusion that the accused, Ms Lui and Fu Chai being in the same conspiracy to unlawfully traffic in dangerous drugs. I rely primarily on the evidence which I have characterised as external to the statement of Ms Lui but I have taken into account the non-hearsay components of that statement. The authorities suggest that reliance can be placed on the non-hearsay components of the proposed evidence of a co-conspirator. Although the reference to Fu Chai asking Ms Lui to take something out of the stock of ketamine at her residence for distribution is strictly hearsay I propose to rely on it not for the truth of what was said but for the fact that it was said. Ms Lui testified that she got that stock from the accused to store temporarily. The inference which is clearly open is that if it is true that Fu Chai said what is attributed to him then his access to the stock of the accused stored with Ms Lui clearly points to him in an agreement with the accused in the trafficking in ketamine. Accordingly, that passage is, while hearsay in a general sense is not inadmissible hearsay which is what I take R v Au Shui-yuen Alick (above) and R v Ahern (above) to have in mind. While, as I say, the dominant focus of my analysis is on the evidence external to the statement the contents of the statement which can be characterised as non-hearsay have influenced my analysis.

17. Counsel for the accused submits that it is significant that Fu Chai is not on the indictment. The indictment is presently drawn over as a conspiracy between Ms Lui, the accused and “persons unknown”. It is not required in law for the person who made the declaration (or did the act) in furtherance of the conspiracy be named in the indictment: R v Devonport & Pirano [1996] 1 Cr App R 221. Fu Chai might come within the “persons unknown” category. In any event, the full effect of the depositions and the additional evidence means that the accused and his legal advisers could not have failed to notice that it was said by the prosecution that Fu Chai was a member of the conspiracy.

18. Counsel for the accused submits that even if the declaration by Fu Chai is within the scope of the rule, the fact that he cannot be cross-examined about this matter renders that evidence to be inadmissible on the basis that it would create an unjustified risk that there would be an unfair trial. The courts have recognised that there is a discretion to exclude such evidence on such a basis: HKSAR v Vivien Fan (2011) 14 HKCFAR 641.

19. In my judgement, there is reasonable evidence to support the conclusion that Fu Chai and the accused were in the same conspiracy as Ms Lui and that conspiracy is the one which is the subject of the indictment. In particular, support is to be derived from question and answer 10 of the witness statement of Ms Lui in the depositions. Some support can also be derived from the admissions made by the accused in the first letter written to Ms Lui while she was in custody. On that basis, the impugned passage in the statement of Ms Lui is admissible as an act or declaration in furtherance of the conspiracy the subject of the indictment.

20. In my opinion, it would have been open to the draughtsman of the indictment to include words to the effect “and a person known as Fu Chai” in the indictment. This might have been significant if it had not been obvious from the outset that it was the prosecution’s case that Fu Chai was a member of the conspiracy the subject of the indictment. If I thought there was anything in this point, I would probably adjourn the case to give the prosecutor the opportunity to consider his position with respect to the drafting of the indictment and to give counsel for the accused the opportunity to consider his position. However, as the reality is that those representing the accused must have appreciated that it was the prosecution case that Fu Chai was a member of the conspiracy I cannot accept that there is any prejudice to the accused in this regard.

21. In my opinion, the impugned statement in paragraph 11 of the witness statement in the depositions of Ms Lui is not mere narrative. It is concerned with arrangements to pick up in Hong Kong drugs which had been packed on the mainland and to ensure that Ms Lui understands the arrangements and the participants in the packing operation which were a prelude to its delivery. In my judgement, this is clearly a statement to advance the interests of the conspiracy.

22. The only remaining question is whether the inability of counsel for the accused to cross-examine Fu Chai would be a proper basis for the exclusion of the impugned passage. I rather suspect that if Fu Chai was available, he would most likely be on the current indictment as an accused and if that were the case his availability to the present accused for cross examination would depend on exigencies of a joint trial and it would be by no means a sure thing that he would conduct his case in a manner which would expose him to the cross examination of the present accused. In my judgement the efficacy of cross-examining Fu Chai is a concept substantially more apparent than real.

23. Finally, in making the order that the impugned passage is admissible as an act or declaration in furtherance of the conspiracy, I also make it plain that in the event that the evidence presents at trial in a manner which would mean that the factual underpinnings of, in particular, my determination that there exist reasonable evidence that the impugned passage was an act or declaration in furtherance of the conspiracy, were to fall away then I would be in duty bound to reconsider the ruling. Subject to that qualification these are my reasons for holding the impugned passage in paragraph 11 of the statement of Ms Lui to be admissible as an act or declaration in furtherance of a conspiracy involving herself, the accused and Fu Chai.

	(Andrew Bruce SC)
	Deputy High Court Judge

Mr. Richard Donald, Counsel on fiat for Department of Justice, for the HKSAR

Mr. Jackson Poon, instructed by M/s. Siomon C.W. Yung & Co. assigned by Director of Legal Aid, for the accused

HCCC 75/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 75 OF 2017

________________________

BETWEEN
	HKSAR
and
	LAM HING CHIT (林慶哲)	Accused

________________________

Before: Deputy High Court Judge Bruce SC in Court

Dates of Hearing: 24 July 2017

Date of Ruling: 24 July 2017

________________________

RULING ON ADMISSIBILITY

________________________

1. Lam Hing Chit (“the Accused”) faces an indictment alleging conspiracy to traffic in dangerous drugs contrary to sections 4(1), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134. The particulars allege that between August 2015 and 4 September 2015 (both dates inclusive) in Hong Kong, he conspired with Lui Mei Yi and others unknown to unlawfully traffic in a dangerous drug. The dangerous drug in question is alleged to be ketamine.

2. On 21 July 2017, the Accused was arraigned on this indictment and pleaded not guilty.

3. The alleged co-conspirator, Ms Lui Mei Yi, pleaded guilty to a series of quite serious drug offences. She has been in custody since the date of her arrest: 4 September 2015. While she was in custody she received a series of letters from the Accused. Originally, the prosecution sought to adduce 4 of those letters the first being sent in March 2016 and the last on 10 January 2017. The position now is that prosecution wishes to adduce one of those letters — the letter in March 2016. It is common ground between the prosecution and the defence that the 2^nd and 4^th letters are not to be adduced. The Accused through his counsel wishes to adduce the 3^rd letter. Counsel for the prosecution objects to the reception into evidence of the 3^rd letter.

4. In order to understand the context in which this objection is taken, it is necessary to understand that one of the principal witnesses that the prosecution proposes to call in this case is Ms Lui Mei Yi — the recipient of the letters. The prosecution intends to call her as a witness. She will testify under a partial immunity. (The reason the immunity only covers some of the criminality does not matter for present purposes.) If what she says is true, she is a co-conspirator with the Accused in a conspiracy to traffic in dangerous drugs. In this regard, she is provided two statements. The first statement is her main statement and, if it is to be believed, details her involvement and the involvement of the Accused in the conspiracy the subject of the indictment. The 2^nd statement concerns the production of the 4 letters. I will outline in a little more detail the content of these 2 statements.

5. In determining the admissibility of the letter is the subject of the objection, I am asked to proceed on the following assumptions:

(1)   that Ms Lui will give evidence and testify in accordance with the statements that she has provided to the police;
(2)   the Lam Hing Chit mentioned in her witness statements is the Accused; and
(3)   the prosecution is in a position to prove the letters came from the Accused.

Counsel for the parties have informed me that it is accepted that items (2) and (3) are not in dispute. No evidence is to be called in the determination of this issue.

6. Ms Lui Mei Yi has made two witness statements. The first was taken on 21 June 2016. At the time, she was in prison. In that statement, she describes how she met the Accused in around August 2015. She describes how she came to sell ketamine on behalf of the Accused. Further, she describes how about a month after she commenced her drug trafficking activities that she received dangerous drugs from a person by the name of Fu Chai who she characterised as the boss of the Accused. Ms Lui said that she would collect goods from trucks operated by transportation companies in Sham Shui Po. She would pick up the drugs from the trucks and took them to Fu Chai. Later, arrangements would be made for her to pick up the drugs to distribute to buyers. After she had delivered the drugs she would be paid money by Fu Chai. On 2 September 2015 Ms Lui met Fu Chai in Mong Kok and was told that the batch of dangerous drugs would be delivered from the mainland to Hong Kong on 4 September 2015 and arranged to meet him at 3 pm on that day at the Sham Shui Po MTR Station so that he could arrange for her to collect the goods from a lorry driver in Nam Cheong Street in Sham Shui Po. She told the police that Fu Chai had said to her that the Accused and another girl by the name of Ye Mingzhu were responsible for packing the ketamine on the mainland. She was asked by Fu Chai to take out one of the bags of ketamine inside the store of drugs given to her by the Accused and kept at her home. She did this on 4 September 2015. She put it in her hand bag and went to meet Fu Chai at the MTR Station as arranged. She was given $120 to give to the driver of the lorry.

7. It is relevant to note that she says Ms Ye Mingzhu has the nickname “Happy”.

8. In the statement dated 21 June 2016, Ms Lui also told of an occasion where the Accused asked her to keep some of his things at her home and that she would get $1000 as a reward. They eventually meet up and when they did the Accused gave her a black plastic bag. At the time, she did not check what was in the black plastic bag. She took that bag back to her home in Lam Tin. She took the bag to her bedroom and discovered that it contained what she believed to be ketamine, an electric scale, a spoon and a transparent plastic bag. She said that she put these back into the black plastic bag and hid it in her bedroom.

9. On 4 September 2015, shortly after picking up a package at the request of Fu Chai from a lorry driver in Nam Cheong Street in Sham Shui Po, Ms Lui was arrested by police. She has been in custody since the date of her arrest.

10. Following the arrest of Ms Lui, a series of events occurred which culminated in the arrest of the Accused. These events are:

Date Event
4/9/15 Lui Mei Yi arrested by police. She remains in custody thereafter.
29/3/16 The Accused writes first letter to Lui Mei Yi. At the time of writing the Accused is in custody in connection with other criminal proceedings not related to the present indictment.
19/5/16 the Accused writes 2^nd letter to Lui Mei Yi.
21/6/16 Lui Mei Yi gives the first of her witness statements to the police alleging the involvement of the Accused in a conspiracy to traffic in dangerous drugs.
14/7/16 Lui Mei Yi pleads guilty to an indictment and is sentenced to 16 years imprisonment.
27/7/16 The Accused is arrested and charged with conspiracy to traffic in dangerous drugs — this is the subject of the present indictment.
1/8/16 Ye Mingzhu was arrested by police on the basis that she was suspected to have been involved in committing offences together with the Accused and Lui Mei Yi.
6/1/17 The Accused writes 3^rd letter to Lui Mei Yi.
10/1/17 The Accused writes 4^th letter to Lui Mei Yi.

11. The present application proceeds upon the basis that the Accused was unaware that Lui Mei Yi had given the police a witness statement. The committal papers in respect of the current charge were served on him shortly after the 4^th letter was written to Lui Mei Yi on 10 January 2017. Those papers included the witness statement of 21 June 2016 from Ms Lui.

12. The first letter written on 29 March 2016 as it appears in the additional evidence bundle is incomplete. The notice of additional evidence served on the Accused and provided to the court which contains the letters starts in respect of the 1^st letter on the 3^rd page of that letter. No point is taken by the parties as to that. The 1^st and 2^nd pages have been located. There is no intention to adduce them. At the commencement of the 3^rd page, there is a reference to “Happy” which a jury could conclude was a reference to Ye Mingzhu. It is to be recalled that Ms Lui asserts in her witness statement that Ye Mingzhu was a member of the conspiracy. The opening reference is followed up later in the letter with a speculation on the part of the Accused which is to the effect that the Accused and some other persons with whom he was discussing the issue considered that “Happy” was the person most likely to have implicated Ms Lui. It is asserted in the letter that “Happy” was “caught for half an ounce of K two days prior to it” which a jury might justifiably understand to mean that “Happy” had been arrested for a drugs offence some 2 days before Ms Lui was arrested. (It is to be recalled at this stage that the Accused had not been arrested in connection with the current proceedings. As will be seen from the table above, there is an arrest of Ye Mingzhu in connection with the current indictment. However, it is an Admitted Fact that she was later advised by police that she would not be charged in this regard. On any view, this could not be regarded as the arrest to which the defendant refers in his letter.) The speculation on the part of the Accused about who might have implicated Ms Lui is, in essence, the secondary matter in this part of the letter. The primary matter is that he relates that “Fu Chai” called him on the day of Ms Lui’s arrest “to ask me to help you tidy up the house.” (A jury might understand that to be a reference to Fu Chai who is said by Ms Lui to be a member of the conspiracy and is also said to be the boss of the Accused) asking the Accused to dispose of the drugs which were at the residence of Ms Lui. The letter continues by the Accused relating that he made a number of attempts to contact people in order to “tidy up” the residence of Ms Lui. The upshot of the narrative is that he was unsuccessful in getting somebody to do this before the place was “kicked”. A jury might understand that to mean that this was the time when the police arrived at the residence of Ms Lui.

13. The first letter written by the Accused continues and talks about the “Customs” trailing and arresting him. There are then references to the Accused being in what must be Stanley Prison and some of the experiences of the Accused in that place. The rest of the letter is concerned with the topic of a pen pal for a third person.

14. The 3^rd letter is dated 6 January 2017. It refers to the Accused going through the inconvenience of confiscation proceedings. It is fairly clear that these particular proceedings do not relate to the present indictment. However, the next part of the letter plainly does. The Accused speaks of the police laying another charge and it is difficult to imagine that a jury would fail to conclude that this is a clear reference to the present charge faced by the Accused. The critical passage is: “In the future when I am taken to court, can you be a witness for me?? You know I am innocent.” Following this passage there is what appears to be a handwritten emoji possibly symbolising tears coming out of one eye.

15. The prosecution contend that the first letter is an out-of-court statement which is an admission against interest in the sense that it is a declaration that the Accused tried to help cover up the possession of a substantial quantity of ketamine located at the residence of Lui Mei Yi. What could be interpreted as an admission against interest may derive from a statement other than one made to the police. An example of this may be seen in HKSAR v Chan Chun Chuen [2013] 6 HKC 437 where the admission against interest attributed to the Accused in that case was to be found in probate proceedings.

16. The assertions in the first letter are not a direct admission of complicity. The case for the prosecution is that the assertions in the letter about a request by “Fu Chai” to make efforts to “tidy” the house of Ms Lui. These references a request by “Fu Chai” to make efforts to “tidy” the house of Ms Lui are capable of being interpreted by a jury as either:

(1) an admission that the Accused undertook an act or declaration in furtherance of the conspiracy in which he was still involved in that conspiracy even though the arrest of Ms Lui rendered her out of the conspiracy of which he was still a member; or
(2) even if the conspiracy had ended by the arrest of Lui Mei Yi, the act of the Accused was in the nature of attempting to pervert the course of public justice to cover up at least her involvement in the possession of a quantity of dangerous drugs at her home.

Whichever view is correct; it would be open to a jury to conclude that the Accused was acting at the behest of Fu Chai who was said by Ms Lui to be a member — indeed her statement says a leading member — of the conspiracy in which the Accused was involved. It is relevant to the consideration of the jury that Fu Chai has, of all people, chosen the Accused to undertake this task which is also suggestive of the involvement of the Accused in the conspiracy.

17. Counsel for the Accused submits that the conspiracy was over at the time of the call by Fu Chai to the Accused and so it follows from that that his conduct could not be an act or declaration in furtherance of a conspiracy in which he was involved. Further, counsel submits that there is nothing in the language of the relevant passage of the first letter which suggests that the Accused was ever a member of that conspiracy and taking the language of the letter at the highest point does not show his involvement in that conspiracy.

18. It is accepted by the parties, in principle, that conduct which occurs after a crime has been committed could give rise to an inference that the perpetrator of that conduct was involved in the crime. Classic examples of this could be flight after a crime or destroying or concealing evidence although, that said, careful directions to the jury would be necessary. Here, the prosecution case is the letter is capable of being an admission to an attempt to cover up a crime or aspects of a crime. In essence, the position of counsel for the Accused is to say that this is not necessarily so.

19. It is plain that in order for a jury to come to the conclusion that the conduct that the Accused says that he undertook (that is, calling others at the instance of “Fu Chai” to “tidy” the residence of Ms Lui) is conduct which tends to prove the involvement of the Accused in the conspiracy alleged by Ms Lui, the jury would be required to interpret the language of the letter. Subject to issues about whether the prejudicial effect of circumstantial evidence is such as to outweigh its probative value so as to render reception in evidence unfair, the admissibility of circumstantial evidence such as that in issue in that case is determined upon the basis that the evidence is capable of permitting a jury to draw an inference adverse to the Accused as to his involvement in the conspiracy averred in the indictment: R v Power (1996) 87 A Crim R 407; R v Ciantar (2006) 167 A Crim R 504; R v Nguyen (2001) 118 A Crim R 479 and Butler v R (2011) 216 A Crim R 215, 234. While each of these cases is instructive, the point made by Doyle CJ giving the judgment of the South Australian Court of Criminal Appeal R v Power (above) makes the point: ((1996) 87 A Crim R 407, 409)

“ It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected.”

It is open to a jury to undertake the interpretation of the letter to determine if it is an admission of concealing or destroying evidence at the residence of Ms Lui and thus to consider whether this letter is evidence of membership of a conspiracy to traffick in dangerous drugs: HKSAR v Lau Ka Yee (2004) 7 HKCFAR 510. It is a question of fact for the jury as to whether they are prepared to interpret the letter in a manner which tends to prove the involvement of the Accused in the conspiracy alleged by Ms Lui. There is ample authority for the proposition that if words attributed to the Accused are ambiguous or equivocal and if the prosecution is not able to resolve that ambiguity to the satisfaction of the jury, any conviction obtained as a result thereof must be quashed: HKSAR v Lau Ka Yee (above). In that case, Mason NPJ dealt with the issue of the reception into evidence of oral statements made by, and conduct of the appellant at a meeting with fellow members of the Catholic Church. The appellant had been charged with an array of crimes of indecency while he was a priest and the case for the prosecution was that in this meeting he had said things in that meeting which amounted to an unequivocal admission of guilt or were no more than an apology for his criminal conduct. On appeal the appellant contended that the evidence was ambiguous. As Mason NPJ observed (2004) 7 HKCFAR 510, §§52 – 53 “in the case of crime, an apology will constitute an admission if it is a statement against the interests of the author of the statement.” Mason NPJ went on to say that where an admission is ambiguous the jury have the responsibility of resolving the ambiguity if they can. However, if an equivocal admission is admitted in evidence where the conviction is based on such an admission and there is no other evidence to support the conviction the conviction will be quashed. Mason NPJ cites R v Chan Yun Hung [1987] 2 HKC 228. Mason NPJ also recognised that, consistent with SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168, where the admission is equivocal so that its prejudicial effect is out of proportion to its probative value or weight, it will be excluded on the ground that its reception will prejudice a fair trial.

20. Counsel for the Accused, on the premise that what the Accused admits that he did (calling others at the instance of Fu Chai to “tidy” the residence of Ms Lui) is not an act or declaration in furtherance of a conspiracy of which he was a member. He submitted that it is evidence of a crime of attempting to pervert the course of public justice and the Accused is not charged with that crime. It is well recognised that generally it is inappropriate to place before the jury evidence of a crime other than that in respect of which the Accused is charged. In HKSAR v Zabed Ali (2003) 6 HKCFAR 192, Li CJ giving the judgment of the Court of Final Appeal, held that in relation to evidence of bad character or misconduct on the part of the Accused which is not the subject of the indictment, the rule is that if the evidence is relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence, it may be admissible, notwithstanding that it also shows propensity. Li CJ held that if evidence met this test then the court should consider admissibility in the following manner: ((2003) 6 HKCFAR 192, §23)

“(1) The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to and any specific defence raised by the Accused would be taken into account. However, in the well-known words of Lord Sumner in R v Thompson [1918] AC 221, 232:
The prosecution cannot credit the Accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice…”
Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue.
(2) The evidence the admissibility of which is in question should be focused on.
(3) The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue?
(4) If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, then the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law. If it is not satisfied, the evidence would be ruled inadmissible. But if in answer to the above questions, it is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.”

In short, the mode of analysis propounded by Li CJ is to first determine the relevance of the evidence proffered by the prosecution and, then determine whether the probative force of that evidence is sufficiently great to make it just to be admitted notwithstanding that it is prejudicial to the Accused. The plain implication of the judgment of the Court of Final Appeal is that it is of critical importance to identify with precision to what issue the impugned evidence is relevant and how that evidence might go about proving or tending to prove facts germane to that issue.

21. In HKSAR v Zabed Ali (above), the prosecution’s case was that the defendant committed the murder in the course of a robbery that went wrong, and was based on circumstantial evidence. This included testimony from X of his conversation with the defendant some 10 days before the murder. X alleged that the defendant told him that when he was a child, his father had been killed by a political party in Bangladesh, and that he was going to kill someone in revenge and had a fixed target who he did not name. X also claimed that the defendant later said he was just joking. The defendant appealed on the basis that X’s evidence should not have been admitted. X’s evidence was not relevant to the defendant’s intent to kill. The argument in support was that the defendant’s statements that he was going to kill made it more likely that he had the intent to kill and did kill V as charged. This was held to be mere propensity evidence which must be excluded as inadmissible by the exclusionary rule. An important feature of HKSAR v Zabed Ali (above) was that the impugned evidence did not, in any relevant sense, require interpretation. It was not ambiguous. It was just inadmissible. In the instant case, the impugned evidence does require interpretation in order to appreciate such probative value as it may have. In my judgment, at least in principle, the fact that the impugned evidence requires interpretation in order to understand what probative effect is capable of having does not disqualify it from consideration as potentially admissible. However, the requirement that it be interpreted in order to establish the potential probative effect of the evidence is a relevant factor to be taken into account in determining the admissibility of the evidence in accordance with the principles established by HKSAR v Zabed Ali (above).

22. Before making a judgment as to whether the evidence is admissible in accordance with the principles established by HKSAR v Zabed Ali (above), there are three further contentions made by counsel for the Accused in relation to the letter that need to be considered. Counsel submits that it is also prejudicial to the Accused that the letter associates him with “Happy” who is Ye Mingzhu who is a person associated with drugs and who might be an informant of the police. Further, the clear implication of some of the letter is that the Accused is in custody and the jury may hold that against the Accused.

23. In my judgment, it is difficult to say with certainty that even with the removal of Lui Mei Yi from the conspiracy as a result of her arrest that the conspiracy continued and that the Accused and others remained in that conspiracy. I think that is likely to be the case but I do not think it is sufficiently certain for me to use it as a basis for a ruling as to admissibility of the first letter. In any event, it almost certainly does not matter: whether the conduct could be characterised as an act or declaration in furtherance of a conspiracy or not, the conduct still almost certainly involves the commission of a criminal offence. Nevertheless, I think that the appropriate analysis is to proceed upon the basis that the conspiracy had come to an end. The consequence of that is that the admissibility must be determined by reference to the scenario that such conspiracy is there was is over and that Fu Chai has asked to the Accused to assist in the cover-up and the Accused has by making the telephone calls that he made assisted in that regard. The prosecution seeks to use the evidence to establish that by agreeing to undertake this course of conduct an inference is available that the Accused was a member of the criminal conspiracy to traffic in dangerous drugs. The jury might be prepared to conclude to the criminal standard that the readiness of the Accused to assist in the process of “tidying” the residence of Ms Lui might be explained in part by the fact that, according to the statement of Ms Lui, it was he who instigated the placement of dangerous drugs at the residence of Ms Lui. The contrary contentions would have to be put to the jury: that the Accused was prepared to do what he did to act at the request of Fu Chai even though we had no involvement in the conspiracy other than, perhaps, knowledge of the existence of the conspiracy. In my judgment, the critical parts of the first letter are well capable of providing some proof that the Accused was a member of the conspiracy and that therefore the first part of the process of reasoning propounded in HKSAR v Zabed Ali (above) has been established. I do not think that the evidence is, to borrow the phrase of Doyle CJ in R v Power (above) “intractably neutral” — in any event I am far from persuaded that this could necessarily be a basis for exclusion.

24. The next question is whether even though the evidence is well capable of providing some proof that the Accused was a member of the conspiracy whether the prejudicial effect of this is such as to endanger a fair trial of the Accused. I propose to deal first with the issue of prejudice arising from the fact that the letter reveals that the Accused was in custody at the time of writing it and may have been guilty of offences other than that faced by him in the current indictment. That can be cured by redacting that part of the 3^rd page which refers to matters such as the Accused being in Stanley Prison. Even if that were not so there is nothing inherent in the letter which suggests that the custody was anything other than as a result of an accusation to be determined at a later stage that the Accused had committed a crime and was thus in custody by reason of the accusation rather than a conviction. However, that does not fall for consideration if there is an appropriate degree of redaction. So far as the implied connection with Ye Mingzhu (“Happy”) I regard this as essentially trivial and neither by itself nor taken with other matters does it even begin to fall for consideration as having potential prejudice.

25. Does the fact that the conduct undertaken by the Accused which he admits render the admission by him in the first letter inadmissible upon the basis that the prejudicial impact of this conduct is such as to render his trial unfair? This is upon the basis that it reveals criminal conduct of the nature of an attempt to pervert the course of public justice. Many acts by an accused person following a crime may be criminal (for example, destruction or concealment of evidence and interference with witnesses) and some may not (for example, flight). Sometimes if the conduct of an accused person after the crime is of great significance a charge of attempting to pervert the course of public justice might be justifiable. There would be, however, many, many cases where to add such an additional charge would obscure the main issue. Drafting indictments requires an acute appreciation of the relationship between the forest and the trees. However, it seems to me that such prejudice is something which can be cured by direction. In any event, I do not regard the prejudice as so great as to prevent the fair trial of the indictment as laid.

26. In the result, in my judgment the first letter should be admitted into evidence subject to appropriate arrangements being made for redaction.

27. I think that I can deal with the issues relating to the reception into evidence of the 3^rd letter with considerably greater brevity. Objection is taken by the prosecution upon the basis that the letter is self-serving and is not a spontaneous expression in the face of an accusation made to the Accused. There is some force in what is said on behalf the prosecution because the letter was written many months after the Accused first faced the accusation that he was guilty of a conspiracy to traffic in dangerous drugs with Lui Mei Yi and others. Nevertheless, it does seem to me that in all the circumstances it would promote and a degree of fairness and balance for the jury to have available to it the 3^rd letter. That fairness and balance is a relevant part of the determination of the admissibility of such evidence is recognised in Attorney General v Li Siu Lam [1989] 2 HKLR 370, 374. I propose also to order that the 3^rd letter be admitted into evidence subject to appropriate arrangements for redaction of certain parts.

	(Andrew Bruce SC)
	Deputy High Court Judge

Mr Richard Donald, Counsel on fiat, for DOJ/HKSAR

Mr. Jackson Poon, instructed by M/S. Simon Yung & Co. assigned by DLA, for the defendant

HKSAR v. LAM HING CHIT

Related cases with same parties

Files (2)

Date	Event
4/9/15	Lui Mei Yi arrested by police. She remains in custody thereafter.
29/3/16	The Accused writes first letter to Lui Mei Yi. At the time of writing the Accused is in custody in connection with other criminal proceedings not related to the present indictment.
19/5/16	the Accused writes 2^nd letter to Lui Mei Yi.
21/6/16	Lui Mei Yi gives the first of her witness statements to the police alleging the involvement of the Accused in a conspiracy to traffic in dangerous drugs.
14/7/16	Lui Mei Yi pleads guilty to an indictment and is sentenced to 16 years imprisonment.
27/7/16	The Accused is arrested and charged with conspiracy to traffic in dangerous drugs — this is the subject of the present indictment.
1/8/16	Ye Mingzhu was arrested by police on the basis that she was suspected to have been involved in committing offences together with the Accused and Lui Mei Yi.
6/1/17	The Accused writes 3^rd letter to Lui Mei Yi.
10/1/17	The Accused writes 4^th letter to Lui Mei Yi.