HK CourtDB
HomeDirectoryMCP
Hong Kong CourtDB
Back to directory
Criminal Case2017

HKSAR v. WONG WING MAN, MANDY alias WANG XUEXIN AND ANOTHER

Related cases with same parties

  • CAAR11/1997HKSAR v. YIP CHI TUNG
  • CAAR1/1998HKSAR v. LING VERONICA
  • CAAR12/1996HKSAR v. WONG KWONG YICK
  • CAAR6/1998HKSAR v. LAU SHIU KONG AND ANOTHER
  • CAAR6/2012HKSAR v. LEUNG KWOK CHI
  • CAAR9/2001HKSAR v. WONG TO LEUNG
  • CACC100/1997HKSAR v. YU HON CHUN
  • CACC100/1999HKSAR v. LAM CHI KIN
  • CACC100/2000HKSAR v. SHING KUEN KIN
  • CACC100/2001HKSAR v. OU YANG MING CHYUAN
  • CACC100/2002HKSAR v. CHAN LAI SING AND ANOTHER
  • CACC100/2003HKSAR v. CHENG CHONG SHING
  • CACC100/2022HKSAR v. LIMBU PRASHANT
  • CACC101/1997HKSAR v. YIU KENNETH LIK KIN
  • CACC101/2001HKSAR v. LEUNG KWAI PING
  • CACC101/2021HKSAR v. WONG CHI FUNG AND ANOTHER
  • CACC10/1997HKSAR v. MAN KAM SHING
  • CACC10/1998HKSAR v. CHAN CHUN TAK
  • CACC10/2001HKSAR v. TAM KWAI KEUNG AND ANOTHER
  • CACC10/2002HKSAR v. WONG WAN SHAN

Files (2)

[2018] HKCFI 1416-EN-2018-05-07

HKSAR v. WONG WING MAN, MANDY alias WANG XUEXIN AND ANOTHER

HTML content

HCCC 76/2017

[2018] HKCFI 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 76 OF 2017

_______________

 HKSAR 
 v 
 WONG Wing-man, Mandy alias WANG Xuexin1st Defendant
 LING Yiu-chung, Rocky2nd Defendant

_______________

Before: Hon Zervos J in Court
Date of Hearing: 7 May 2018
Date of Ruling: 7 May 2018

_____________________________________________

RULING ON ADMISSIBILITY OF STATEMENTS
BY A THIRD PARTY

_____________________________________________

1.  At the close of the hearing on Friday, an objection was raised by Mr Leung Chun Keung, for the 1st defendant, against a line of questioning that he was informed by Mr James McGowan, for the 2nd defendant, would be pursued by him when cross-examining DPC 6525, Lui Ka Chun (PW9).

2.  Mr McGowan wants to cross-examine the police officer in relation to what he was told by the twin daughters of the 1st and 2nd defendants, Cheng Sze Wing and Wong Chak Kei.  The officer took a statement from Cheng on 13 August 2015 in which she gives an account similar to what the 2nd defendant said initially to the police that Suki was born prematurely and had serious developmental problems from then on.  The officer recorded a statement from Wong after caution in which she said that her mother told them to tell lies as she was afraid of being prosecuted.  She went on to make an admission that the younger sister, Suki, was beaten but Mr McGowan does not wish to elicit this latter part of her statement. 

3.  I am informed that the twin daughters will not be called to give evidence.

4.  The question arises whether Mr McGowan can elicit from the police officer certain statements told to him by Cheng and Wong.  On its face, this is hearsay evidence.  In HKSAR v Yau Chung Man,CACC 411/2015, 23 August 2017, in giving the reasons for judgment of the Court, I stated:

“30. In Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, McHugh NPJ in his judgment, with whom the other judges agreed, provided a working definition of the hearsay rule in the following terms: “an oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”

31. McHugh NPJ went on to explain that in establishing whether the hearsay rule had been breached, it was necessary to determine the purpose for which evidence of an out-of-court statement was tendered.  He emphasised that an out-of-court statement, made in the absence of a party, was not necessarily inadmissible, as long as its contents were not relied on to prove a fact recited or asserted.  Such statement would be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.  He noted that the hearsay rule does not forbid the proof of what somebody said out of court.  What is forbidden is the proof of a fact by telling what somebody said about the fact out of court.

32. Whether evidence in any particular instance is admissible depends on what fact it tends to prove.  In general terms, if it tends to prove what somebody said out of court, it would be admissible. If, on the other hand, it tends to prove the fact of what someone said out of court (or the truth of it), it would inadmissible.  Thus, evidence as to what is said by a person out of court will be admissible to prove the person’s state of mind where it is a relevant issue.”

5.  The critical issue therefore turns on the question of what is the purpose of eliciting this evidence.  Mr McGowan submits that the statements of Cheng show that a similar account was given about Suki’s condition that the 2nd defendant had given initially to the police which he subsequently admitted was a lie, and that the family were generally adhering to this particular account.  He submits that the statements of Wong show that the family were told to lie by the mother. 

6.  It needs to be borne in mind that this evidence seeks to address the allegations in Count 3 where both the 1st and 2nd defendant are jointly accused of perverting the course of public justice.  The 2nd defendant’s defence is that he was forced by the 1st defendant to make false statements about Suki’s condition and that she also instructed the twin daughters to do the same.

7.  Mr McGowan submits that the evidence is admissible as it does not offend the hearsay rule and represents acts and declarations in furtherance of the joint enterprise as alleged under Count 3.

8.  Of the statements of Cheng, Mr McGowan submits that the purpose of this evidence is to show that it was said, not to rely on the truth of what was said.  Mr Leung initially objected to Mr McGowan eliciting this evidence from the police officer but in the course of submissions resiled from this position, acknowledging that the 1st defendant’s defence was that the statements made by the family about Suki’s condition were made at the instigation of the 2nd defendant.  He accepted that there was no prejudicial effect on the 1st defendant’s case by this evidence. 

9.  Of the statements of Wong, Mr McGowan acknowledges that the purpose of this evidence is to establish the truth of what was said, that is, the mother told them to lie.  At the conclusion of submissions, he conceded that he would not seek to elicit this evidence from the police officer.

10.  It is for the foregoing reasons that I rule that the statements of Cheng can be elicited from the police officer but not the statements of Wong.

   

   

 (Kevin Zervos)
 Judge of the Court of First Instance
High Court

  

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Tang & Lee, assigned by Director of Legal Aid, for the 1st defendant

Mr James McGowan, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the 2nd defendant

[2018] HKCFI 1415-EN-2018-04-16

HKSAR v. WONG WING MAN, MANDY alias WANG XUEXIN AND ANOTHER

HTML content

HCCC 76/2017

[2018] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 76 OF 2017

_______________

 HKSAR 
 v 
 WONG Wing-man, Mandy alias WANG Xuexin1st Defendant
 LING Yiu-chung, Rocky2nd Defendant

_______________

Before: Hon Zervos J in Court
Dates of Hearing: 9, 10, 11 and 16 April 2018
Date of Ruling: 16 April 2018

_________________________________

RULING ON VOIR DIRE HEARING

_________________________________

1.  The sole issue to be determined in relation to the 1st defendant’s witness statement dated 12 August 2015 (exhibit PP23 and PP23A) is the question of voluntariness. The challenge of the admissibility of the statement is in relation to Count 1 (the cruelty to a child offence), and not in relation to Count 3 (perverting the course of public justice offence) where the statement forms part of the actus reus of the offence.

2.  If the prosecution has proved beyond reasonable doubt on the whole of the evidence that a statement was made voluntarily by its maker, it is admissible.  If, for any reason, it was not made voluntarily, it is inadmissible.  If the circumstances in which it was made was oppressive, including where violence, threats or inducements had been used or made, it must be regarded as having been made involuntarily.  There is also a further safeguard, that a voluntary statement may still be excluded if it was obtained by unfairness or it would be unfair to admit it into evidence. 

3.  The statement in question was taken from the 1st defendant by WDPC10313 on 12 August 2015.  The officer together with Detective Sergeant 53196 attended the home of the 1st defendant at about 18:05 hours on 12 August 2015.  The two officers were part of a team that had been divided up to make inquiries in relation to the hospitalisation of the 1st defendant’s daughter (the victim) and had been instructed to conduct an investigation in relation to a child abuse case.  The officer explained to the 1st defendant that they would conduct inquires in relation to her daughter’s case and requested whether the 1st defendant would provide a statement to give an account of the girl’s birth and background and why she had been hospitalised.  The 1st defendant understood and agreed to provide a statement.  At 18:10 hours, the officer commenced taking the statement from the 1st defendant which she completed at roughly 19:30 or 19:40 hours.  The 1st defendant signed a declaration and signed the statement after it had been completed.  After she had read over the statement to the 1st defendant, she let her read it and then she filled in the particulars of the chop at the end of the statement and asked her to sign each page and the corrections which she did. 

4.  Two other officers who included a woman Sergeant 55630 went to the Princess Margaret Hospital to make inquiries about the condition of the victim.  Sergeant 55630 after having made her inquiries left the hospital at 18:50 hours and proceeded to the home of the 1st defendant.  The woman sergeant when she arrived at the 1st defendant’s home informed the 1st defendant of her daughter’s condition.  After the statement had been taken, the 1st defendant became agitated and emotional and started to cry. 

5.  WDPC 10313 explained that they remained at the home until about 21:00 hours because of the 1st defendant’s distraught state.

6.  WDPC 10313 confirmed that she did not caution the 1st defendant at that stage because they were making inquiries.

7.  Both WDPC 10313 and Sergeant 55630 denied that the 1st defendant was assaulted, threatened or induced to make the statement. 

8.  In the course of the voir dire hearing, Mr Leung Chun Keung, for the 1st defendant, amended his written grounds of objection to add a further ground that there was a discrepancy in treatment between the 1st defendant and the 2nd defendant, in that the 2nd defendant was cautioned when he was first interviewed.  (The original written grounds of objection was exhibit VD1 and the amended written grounds of objection was exhibit VD2.) 

9.  On the following day, after the 1st defendant had given a witness statement, the 2nd defendant when approached by the police was cautioned.  

10.  In order to address the issue as to why no caution was administered to the 1st defendant, the case officer, Senior Inspector Chong Kwan Wai, was called to give evidence.  She explained that she had received a faxed report from Ms Cheung Hoi Len Helen, providing preliminary information and details of the condition of the victim and referring the case to the police for investigation (exhibit VD3).  The Senior Inspector also spoke to Ms Cheung.  She explained that although it was mentioned in the report that the Multi-Disciplinary Case Conference (MDCC) had defined the parents of the child as abusers, it was based on preliminary information and hearsay material.  She further explained that that was why the team was broken up into two to gather information from the hospital and from the mother. The report of Ms Cheung also included information that the child had been living in the mainland under the care of the grandmother and that she came to Hong Kong on 24 June 2015 to visit her family and that her condition was a result of prolonged malnutrition and the deprivation of medical care and treatment. 

11.  After the statement had been taken from the mother, the Senior Inspector instructed her team members on the next day to interview the other children and the father (the 2nd defendant). When police officers went to see the father he behaved suspiciously, and accordingly she instructed them to take a caution statement from him at that time (Pol 157).

12.  I am satisfied that the police at that stage had an open mind in relation to the case and were making general inquiries. 

13.  Following submissions from counsel, I ruled that there was a case to answer. 

14.  The 1st defendant gave evidence about the attendance of the police at her home and what took place including the taking of a witness statement from her.  She testified that WDPC 10313 arrived at her home together with another police officer or officers and asked her questions and that she wrote down what was said at the same time.  Not long after woman Sergeant 55630 arrived, who she described as having very big eyes that were fierce, and that she spoke to her in a very loud voice and banged the table and hit her head.  She could not recall what was said exactly, but roughly she asked her if she was the mother of the child and whether she was the carer, and she said she was not.  She said she was in an emotional state and was crying.  She said she did not read the statement and no one read it over to her.  She said she signed it because she was told to do so.  She confirmed that she was not in an emotional state when she arrived home, having visited the victim at the hospital.  She had been at the hospital from the morning until 6 pm.  It emerged during her evidence that she could not read traditional Chinese characters in which style the statement had been written by the police officer.  She said she could only read 1 percent of each page.  She said she could only read simplified Chinese characters. 

15.  Even though a caution was not administered on the 1st defendant, at that stage the police were carrying out general inquiries and treated the 1st defendant as a witness and in order to gather information. 

16.  I am satisfied that the police at that stage had not gathered evidence which would afford reasonable grounds for suspecting that the 1st defendant had committed an offence.  I am further satisfied that even though the 1st defendant may not have been able to read traditional Chinese characters, she was able to communicate in Cantonese and had the statement read to her and explained. 

17.  After careful consideration of all the evidence relating to the manner and circumstances in which the statement was taken, including the allegations made by the 1st defendant, that having due regard for the 1992 Rules and Directions for the Questioning of Suspects, I was satisfied as to its voluntary nature, and further satisfied that there is no other ground upon which I should exercise my discretion to exclude it.  I found that the allegations made against the police officers involved in or connected to the taking of the statement were making general inquiries at that stage and that the statement was made voluntarily by the 1st defendant. 

18.  Accordingly, I rule that the 1st defendant’s witness statement dated 12 August 2015 is admissible.

  

  

 (Kevin Zervos)
 Judge of the Court of First Instance
High Court

  

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Tang & Lee, assigned by Director of Legal Aid, for the 1st defendant

Mr James McGowan, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the 2nd defendant