Case Detail

HCCC 138/2020

[2021] HKCFI 3643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2020

________________________

BETWEEN
	HKSAR
and
	ASIF AHFAQ MEHMOOD	1^st Defendant
	NABEEL	2^nd Defendant
	KWOK CHING-LOK	3^rd Defendant

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 22 November 2021

Date of Ruling: 25 November 2021

________________________

RULING

________________________

1. This is a trial in which all three defendants face a single count of Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210. There is no issue as between the parties that a robbery occurred at the material time. The issue before the jury will be whether the defendants were a party to that robbery on a joint enterprise basis or whether they were participating in an agreement to wound the victim without more.

2. This is an application by Mr Tracy, on behalf of D2 in the following terms[1]:

7.1 (a) the proposed police officers’ evidence is opinion evidence and should be excluded;
       (b)   and goes purely to credit and is not relevant during the prosecution case.
7.2 The visual images are not of sufficient clarity to permit identification with the requisite certainty, or at all.
7.3 In any event, if CCTV evidence of identification of D2 (or D1 or D3) may indeed be put forward, it is a matter for the jury, not for the police officers. The jury should make up their own minds uninfluenced by investigating officers’ own opinions.
7.5.1   At 1^st A.E. Bundle 0059-0082, items 3, 4, 5 have been withdrawn from the Admitted Facts but are still objected to.
7.5.2. The tiny photographs are of no use for identification.
7.5.3   There is substantial written narrative which constitutes very obviously ‘out of court’ statements which are inadmissible hearsay.
7.5.4   There are markings of figures on photographs to which the same applies.
7.5.5   Experience shows this may be good briefing material for Fiat Counsel, but in such form it is wholly unfit for production in evidence.

3. After the receipt of these submissions dated 11 November, the 3^rd Notice of Additional Evidence was served upon the defence, which addressed some of Mr Tracy’s concerns but he maintained the thrust of his application was that:

a. the CCTV evidence should not go before the jury at all as an exercise of the Court’s discretion; and
b. the police officers should not be allowed to give ‘recognition’ evidence.

4. It may be that the Court’s ruling as to these two items trigger other matters which will need to be dealt with in future, but for now I intend to concentrate upon the admissibility of the CCTV evidence and to the manner in which the prosecution seek to rely upon it.

CCTV

5. Mr Pannu and Mr Wong do not seek to exclude the CCTV recordings. Mr Tracy persists in his application on the basis that they are of such poor quality that they should not be relied upon. I can see no basis at all for excluding the CCTV evidence. It is relevant. It was properly obtained by the relevant officers and there is no issue as to its provenance. It comes from several different CCTV cameras purporting to show D1, D2 and D3 with others and together, before, during and after the robbery. The quality does vary. Some shots are of much better quality than others but, save for one or two shots of groups in the distance, this does not render it inadmissible. It goes to weight and that is a matter for the jury after careful direction.

6. The true conundrum in this case is as to how it may be presented. As presently advised, Mr Percy seeks to call individual officers to identify the CCTV reviewed and thereafter to identify persons seen within the CCTV on the basis of recognition.

Recognition

7. The leading authority on identification is R v Turnbull [1977] QB 224, which should not need to be repeated herein. It is the starting point for consideration of identification evidence. Technology has moved on since Turnbull; it was over 40 years ago and there is a need to apply the principles enunciated therein to modern rules of evidence. What we have in this trial, as in many others, are images of events caught upon CCTV as they occurred. In essence, the jury stands in the shoes of the observer witness in Turnbull. Although there are dicta[2] elsewhere to suggest that no Turnbull direction is necessary in such circumstances, this Court believes a safer approach is to bear in mind the guidelines in Turnbull as to place, time, quality etc. when considering the images in question and what directions, if any, to give after consultation with Counsel. This, at least to some extent, addresses Mr Tracy’s complaint as to quality.

8. With CCTV evidence or photographs, it is ultimately a matter for the jury whether they are sure that the person depicted is the person the prosecution say it is. What the prosecution wish to do in this case, is to pre‑empt that exercise when presenting the evidence to the jury by identifying who the police say did what and when. The basis for this is two‑fold. First to ensure that the evidence can be understood in context as it is called and second, to prove association by identification. To do that, it is proposed that officers will come to court to say they recognise D1 or D2 or D3 or, as in this case, some of APs 3-13.

9. Mr Tracy seeks to rely upon HKSAR v Tagao Saudee Abad CACC 366/2015 to object to this course. He says the period of time over which these officers dealt with the defendants and the lapse of time between that dealing and the perusal of the CCTV images is such that their identification of the defendants cannot be relied upon. In Tagao, the Court of Appeal stated that where there is no other evidence, a CCTV recording is relevant only if it can be shown that the person in question is the appellant. The evidential burden is a high one. However, it also noted that where there is other direct evidence upon which the prosecution seek to rely and from which an inference may be drawn, then a CCTV recording may be relevant even where the person in question has only a ‘resemblance’ to the defendant. This is because the recording allows for an inference to be drawn, that, for example A was in a certain location or, as in this case, A was with B or C. In Tagao, the CCTV recording was the only evidence of the presence of the appellant and therefore it was either capable of proving his presence or it was not. The analysis of the Court of Appeal therefore focused upon whether the image relied upon was of sufficient quality to be a tool from which the appellant could be identified without more. In the event, the Court of Appeal took the view that the evidence of the police officer was of no weight on the basis that the period of time the officer dealt with the appellant was limited; the period which elapsed from then to viewing the CCTV was dated; the quality of the CCTV was of concern and the officer had not given evidence as to how and why he could recognise the appellant. It is these findings of which Mr Tracy wishes to avail himself.

10. But that is not the end of the matter, the Court of Appeal made a further declaratory statement[3], which I find to be of assistance in this case:

“When a jury has regard to video recordings or photos in a case where the prosecution has called recognition evidence, it is invited to do so for the purpose of determining the reliability of the recognition evidence. In so doing, it inevitably forms its own view on whether the defendant is or could be the person in the video or photo. After looking at the videos or photos and observing the defendant the jury may form the view that the image they see could be that of the defendant and then after hearing the recognition evidence they may become sure of that fact. Where there is no recognition evidence then the jury has to be sure of the fact simply from their own visual comparison of the video recording or photo with the appearance of the defendant.”

11. Each case turns upon its own facts. CCTV images are admissible[4] and it is entirely proper for the jury to draw their own conclusions from those images subject to any directions considered appropriate to the particular facts of the case. What is at issue here is an extra intermediate step i.e. the means by which the prosecution identifies whom they say participated in this joint enterprise. Not simply as an evidential scene setting exercise but also as proof of participation. They seek to do that by calling the officers who dealt with them upon arrest and interview.

12. Proof that a defendant is pictured in a video or photo is capable of being achieved in at least four ways[5]:

(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (R v Dodson and Williams (1984) 79 Cr App R 220);
(ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (R v Fowden and White [1982] Crim LR 588, Kajala v Noble (1982) 75 Cr App R 149, R v Grimer [1982] Crim LR 674, R v Caldwell and Dixon (1993) 99 Cr App R 73, and R v Blenkinsop (1995) 1 Cr App R 7); and this may be so even if the photographic image is no longer available (Taylor v Chief Constable of Chester (1987) 84 Cr App R 191);
(iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based upon a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare and Peach (1995) 2 Cr App R 333; R v Yaryare & Others [2020] 4 WLR 156);
(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (R v Stockwell (1993) 97 Cr App R 260, R v Clarke [1995] 2 Cr App R 425 and R v Hookway [1999] Crim LR 750).

13. The prosecution seek to rely upon step (ii). They say that an arresting officer can be said to know a defendant sufficiently well to be able to recognise him within an image. The ‘high water mark’ of that (as to the least time spent with the defendant) was R v Blenkinsop supra where the Sergeant spent a grand total of 3 minutes with the appellant and viewed evidence some two months later.

14. Which witnesses does the prosecution seek to rely upon for this issue? They are:

     DPC 11781 D1
     DPC 14150    D2
     DPC 9684      AP3
  WDPC 9974      AP4
     DPC 11927      AP6
     DPC 8954      D3
     DPC 10525      AP5

DPC 11781

15. DPC 11781 went to the HKIA on 13 August 2018, to collect D1, who was stopped when attempting to leave the country. DPC 11781 travelled with him between HKIA and Tsim Sha Tsui Police Station, which was a journey of some 43 minutes, arriving at 1635 hours. Between 1637 and 1648 hours he carried out a POL 153 procedure with D1[6] at which time the defendant explained to him that he had been born and educated in Hong Kong, could speak Punti, Urdu and could read English. DPC 11781 then issued a POL 1123 between 1649 and 1653 hours. At 1654 hours a body search was carried out by the officer, which took 4 minutes and after which he seized some exhibits. D1 was returned to the custody of the Duty Officer (‘the DO’) at 1700 hours. In all a period of 68 minutes. DPC 11781 took him out from custody at 2020 hours for an interview, the whole procedure for which took 1 hour 15 minutes. The officer then took an antecedent statement which lasted 22 minutes and a further 12 minutes was used for finger printing before returning to the report room. That makes 177 minutes in total thus far. At 2252 hours the same day, DPC 11781 took D1 for a home search returning D1 to the DO at 2340 hours, totalling 225 minutes’ contact time that day i.e. 3 hours 45 minutes on 13 August 2018 alone. On 14 August 2018, DPC 11781 dealt with the defendant between 1154 and 1215 (21 minutes) and on 15 August he drew him out for a case reconstruction at 0854 hours and then returned D1 to the DO at 1041 hours (a period of 146 minutes). At 1130 hours on 15 August 2018, D1 had a further interview, was issued a POL 153 and other documents by DPC 11781 and was arrested and cautioned. He was then taken back to the report room at 1210 hours (40 minutes). DPC 11781 was therefore with D1 on 15 August for a total of 3 hours and 6 minutes. A total of 7 hours and 17 minutes in all.

16. It was not until 15 January 2019 that DPC 11781 reviewed the CCTV footage of the case and recognised D1 as AP1. I do believe however that even at that juncture (as he may in court if required), DPC 11781 could have looked at the VRIs and then at the CCTV in order to refresh his memory as to the identification of D1, but he did not do so, presumably as he had no difficulty recognising him after dealing directly with him over three days.

17. There is prima facie evidence to allow this witness to seek to recognise D1 within the CCTV evidence so long as the proper foundation is laid.

DPC 14150

18. DPC 14150 was instructed to pick up D2 from the HKIA on 14 August 2018, which he did at 1632 hours and, along with other officers including DPC 11781, took him to Tsim Sha Tsui Police Station arriving at 1701 hours (approximately 29 minutes). At 1702 hours D2 was processed by DPC 14150 until 1723 hours (21 minutes) when he was handed over to the DO. At 2250 hours on 14 August he was taken out of the report room by DPC 14150 and taken for investigation and interview as well as a search of his home address. As a result, the officer was with him from 2250 hours on 14 August to 0312 hours on 15 August (4 hours 22 minutes). He drew him out once more later on 15 August at 2253 hours for processing and charging and handed him back to the report room at 0016 hours on 16 August (1 hour 23 minutes). A total of 6 hours 35 minutes over three days.

19. On 17 January 2019 DPC 14150 viewed CCTV footage and recognised D2 in three shots attached to his witness statement. Subject to establishing the criteria he set out for recognition in his witness statement, the prosecution may adduce this evidence to see to prove the identification of D2 and is not confined to these three shots so long as the proper ground work is established.

DPC 9684

20. DPC 9684 arrested AP3 on 15 August 2018 at 0605 hours at his home address. On arrest and caution he said, “For this incident I just acted as a lookout. I am not certain about other things.” A post record of arrest and caution was then made and a search of his address was carried out in his presence. Between 0700 and 0735 hours he opted to wear a hood at which time he was taken to the DO. He was signed out at 0736 hours for further processing and taken to Tsim Sha Tsui Police Station and handed over to the DO at 0932 hours (1 hour 56 minutes). He was taken for VRI at 1454 hours the same day and then processed and handed back to the DO at 1645 hours (1 hour 51 minutes). A total of 3 hours 47 minutes.

21. DPC 9684 viewed CCTV footage on 15 January 2019 and identified AP3 as being in the attached photo shot. This AP was wearing a distinctive white T-shirt. Subject to the correct foundation being laid, DPC 9684 may be allowed to recognise AP3 in the CCTV footage to be placed before the jury.

WDPC 9974

22. WDPC 9974 arrested and cautioned AP4 at 0605 hours on 15 August 2018 at his home address. On arrest he admitted “I only snatched two suitcases. I did not hit anyone.” At 0839 hours AP4 was handed over to the DO in Tsim Sha Tsui Police Station (2 hours 34 minutes). He was drawn out again at 0856 hours for interview and returned at 1108 hours (2 hours 12 minutes). He was drawn out again at 1316 hours on 15 August and processed, returning to the report room at 1334 hours (18 minutes). He was taken out once more at 2228 hours on 15 August for further processing and returned at 2253 hours (25 minutes). On 16 August at 1359 hours he was taken out by WDPC 9974 for interview and returned to the report room at 1525 hours (1 hour 26 minutes) but then he was taken out once more at 1543 hours for a reconstruction and returned at 1702 hours (1 hour 19 minutes). At 1756 hours he underwent a VRI and was handed over to the DO again at 1834 hours (38 minutes). At 2013 hours he was charged and returned at 2020 hours (7 minutes). A total of 8 hours 59 minutes.

23. WDPC 9974 also dealt with AP12. She arrested and cautioned AP12 at 1226 hours on 13 September 2018. AP12 stated “I was only in charge of finding the driver and robbing the money. I did not hit anyone”. He was taken to Yuen Long Police Station, processed and interviewed until 1532 hours when he was handed over to the report room (3 hours 6 minutes). He was taken out by her at 2045 hours for house search and eventually taken to Tsim Sha Tsui Police Station and charged at 2316 hours and then returned to Yuen Long where he was handed over at 2356 hours to the DO (3 hours 11 minutes). A total of 6 hours 17 minutes.

24. WDPC 9974 viewed CCTV footage of both AP4 and AP12 on 16 January 2019. She recognised both and outlined why. Subject to the proper foundation being laid, WDPC 9974 may seek to identify AP4 and AP12 on the basis of recognition.

DPC 11927

25. DPC 11927 arrested and cautioned AP6 at 1145 hours on 15 August 2018. Upon arrest and caution he said “Fu Chai called me and asked me to beat someone up at Middle Road, that night, after which I would be given money. I had no idea that it was actually a robbery.” From 1146 to 1207 hours he wore a hood when taken to Tsim Sha Tsui Police Station. From 1209 hours he was processed by DPC 11927 until 1355 hours (1 hour 46 minutes). He was signed out again at 1650 hours that day for a house search and returned at 1835 hours, some of that period he was wearing a hood (1 hour 45 minutes). He was signed out again at 2030 hours for processing until 2104 hours (34 minutes) and again from 2150 hours until 2221 hours (31 minutes). On 16 August he was signed out at 1603 hours for interview and was returned at 1708 hours (1 hour 5 minutes). A total of 5 hours 41 minutes.

26. On 16 January 2018, DPC 11927 viewed CCTV footage and recognised AP6. This evidence may be adduced subject to laying the evidential ground work.

DPC 8954

27. DPC 8954 attended at the residence of D3 at 0820 hours on 15 August 2018 at which time D3 opened the door. Enquiries were made of D3 to the effect:

Q: “At around 7:15pm on 8 August 2018, where were you at that time?”
A: “In Tsim Sha Tsui, Ah Sir.”
Q: “What were you doing in Tsim Sha Tsui at that time?”
A: “No answer.”
Q: (Repeated the Question)
A: “I just helped to act as a look out.”
Q: (Caution)
A: “I did not know it was a robbery. I was responsible for beating someone and acting as a look out. It has nothing to do with me.”

Upon arrest and caution he said “I got $6,000 from my friend just for helping to act as a lookout and beating someone, Ah Sir.” A house search and post record was carried out and eventually D3 was taken to be processed at Kwun Tong Police Station at which time he was able to see his legal representative. DPC 8954 left the station at midday as D3 claimed to be unwell. He had been handling D3 for 3 hours and 40 minutes. DPC 8954 next saw D3 in Tsim Sha Tsui Police Station at 1950 hours on 15 August for the purposes of signing the post record and antecedents and other processing. He was handed back to the report room at 2123 hours (1 hour 33 minutes). On 16 August 2018, at 1156 hours he was signed out once more for interview at which time he had legal representation. He was handed over to the report room at 1256 hours (1 hour). A total of 6 hours 13 minutes over two days.

28. DPC 8954 viewed the CCTV footage on 16 January 2018 and recognised D3 as indicated. Subject to laying the correct foundation, this officer may seek to identify D3 within any relevant footage.

DPC 10525

29. DPC 10525 arrested and cautioned AP5 at 0605 hours at his home address. He was taken to Kowloon City Police Station and processed by DPC 10525 and handed over to the DO at 0735 hours (1 hour 30 minutes). He was signed out again at 0810 hours and then taken to Tsim Sha Tsui Police Station and eventually handed over to the DO at 1044 hours (2 hours 34 minutes). He was signed out once more at 1305 hours for interview and returned at 1427 hours (1 hour 22 minutes).

30. I do not have a witness statement as to whether this officer has viewed the CCTV footage and identifies AP6.

Conclusion

31. This is not a fleeting glimpse case. It is a case of old fashioned recognition. It does not fall to be considered as opinion evidence. Nor is it a case, as in Tagoa, in which the only evidence against the defendants is that of identification. They accept presence. They accept they played a role. All three defendants were interviewed although that of D3 is not relied upon. There is therefore police video evidence available of what the defendants looked like on the day of interview and no doubt there are photos taken for police processing purposes if necessary. They do not accept they knew about the robbery. Save for D3 against whom there is no VRI to be produced, they say they had dealings only with AP3. They were recruited to assault someone and no more. The prosecution seek to show communication with and presence with the other members of the joint enterprise in particular AP5 and AP6, both immediately before and immediately after these events. They seek to infer knowledge and an agreement to be party to that joint enterprise from that evidence. Subject to laying the foundation for such evidence, they may do so. What weight is to be attached to it is entirely a matter for the jury.

	(A P Campbell‑Moffat) Judge of the Court of First Instance
	High Court

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Peter Pannu, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Maurice Tracy, instructed by Chaudhry Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

Mr Newman Wong, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the 3^rd defendant

[1] Numbering adopted from written submissions dated 11 November 2021

[2] E.g. R v Blenkinsop [1995] 1 Cr App R 7 p11G

[3] §65

[4]R v Blenkinsop [1995] Crim App R 7

[5] Attorney General’s reference (No 2 of 2002)

[6] CB 1039

HCCC 138/2020

[2021] HKCFI 3820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138OF 2020

________________________

BETWEEN
	HKSAR
and
	ASIF AHFAQ MEHMOOD	1^st Defendant
	NABEEL	2^nd Defendant
	KWOK CHING-LOK	3^rd Defendant

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 22 November 2021

Date of Ruling: 24 November 2021

________________________

RULING

________________________

1. All three defendants are charged, together and with others, with Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210. Six other co‑defendants (APs3, 4, 6, 10, 12 and 13) pleaded guilty before the Eastern Magistrates’ Court on 22 June 2020. This application refers to how the evidence relating to these co-defendants should be dealt with in trial (“the co‑defendants”).

2. The 5^th draft Admitted Facts proposed to be tendered under s65C of the Criminal Procedure Ordinance, Cap 221, includes at paragraph 2 thereof, a reference to the identities of the co-defendants and others uncharged. Paragraph 4 refers to their guilty pleas and committal for sentence. Paragraph 5 refers to the Summary of Facts dated 15 June 2020, which formed the basis of their pleas. Prior to this application, that Summary of Facts had not been checked for accuracy.

3. Paragraphs 10-20 seek to outline the material events. Included within that outline, are paragraphs 15-20, which relate to established facts but also to what each of the co‑defendants said on arrest and under interview where applicable. The issue arises as to whether such evidence is admissible for and/or against the defendants in this case. This would ordinarily be inadmissible as against the defendants in this trial and, as the co‑defendants are not before the court of trial, such evidence is hearsay in any event.

4. All parties wish this evidence to be before the jury. Mr Wong, who represents D3, makes this application on behalf of all three defendants. He relies upon the well‑established principles in R v Myers [1998] AC 124 as followed in HKSAR v Ho Kin Hang Kenneth CACC 152/2005; [2005] HKEC 1553 and HKSAR v Lee Kwan Kong CACC 198/2004; [2006] HKEC 199. In Ho, the appellant faced a total of 20 charges (1-20) under the Prevention of Bribery Ordinance Cap 201, whilst D2 faced six charges (21-26). The appellant was found not guilty of charges 1-8, which involved accepting advantages from D2 whilst D2 was acquitted of the mirror charges (21-26). The remainder of the charges (9-20) as against D1, were different offences alleging the appellant as an agent using documents with intent to deceive his principal. In finding the appellant guilty of charges 9-20, the trial judge placed no weight upon the evidence of D2 in interview. A complaint on appeal was that the trial judge should have taken into account those parts of the interviews of D2 which supported the defence of the appellant. The Court of Appeal relied upon R v Myers and the exception to the rule against hearsay where defendant A makes a voluntary confession against interest which is relevant to the defence of defendant B. In such circumstances the confession of defendant A is admissible in evidence as to facts in issue and as to A’s credibility. Even if A does not give evidence (which in this case is not likely) then the defence may cross‑examine the officer to whom the confession is made as to the terms of the confession. I must note at this stage that there is a huge difference between putting to an officer that A said x, y or z and casting it in stone as an admitted fact under s65C thereby elevating its status to evidence of the truth which cannot be undermined unless very carefully worded. The facts of Ho supra, did not sit on all fours with Myers as the appellant was not seeking to rely upon parts of a voluntary confession inculpatory of D2. The appellant sought to rely upon D2’s exculpatory answers. But the Court took the view that those exculpatory answers must be relevant to the appellant’s defence and therefore should have been taken into consideration. However, those answers were considered marginal in both force and relevance and this Court will not be quick to extend the principle in Myers on the basis of this authority alone.

5. In Lee supra, the charge was one of murder on a joint enterprise basis. The issue before the Court of Appeal was the timing of the final beating of the deceased and who was present. The version of events given by the various defendants as to their presence and participation at different stages of the material events gave support to the claim by D2 that she had not been present at the final beating. That version (by D1 and D3), consistent with D2’s defence and contrary to the interest of D1 and D3 was said to be relevant to the credibility of D2’s account.

6. R v Myers was a different situation to both Ho and Lee. It was a wholly different situation to the one before the Court now. Firstly, Myers is not an authority which allows the prosecution to adduce such evidence. It is not open to them to do so as an exception to the rule against hearsay. The rule in Myers is available to the defence. The question of law of before the Court in Myers was:

“In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B’s defence, or does such a confession in all circumstances offend the rule against hearsay?”

7. In Lee, D1 and D3’s evidence had been admitted into evidence and were before the jury for the purposes of the case against each of them individually. What was missing was that along with a direction that such evidence could only be used against the maker of the statement and no other co‑defendant, there should have been a direction that a co‑defendant could rely upon it in his or her favour.

8. What is sought to be relied upon in this case? These are the facts which are sought to be admitted under s65C in respect of AP3 Wong Wai‑fung Timothy, who is to be called on behalf of the defence by D1:

i) AP3 was arrested on 15 August 2018.
ii) AP3 stated he was recruited by “G” to take part in a robbery.
iii) AP3 was offered a reward of $500,000.
iv) AP3 was asked to recruit more people.
v) AP3 visited the location of the robbery and took photographs.
vi) He was present at the time of the robbery.

9. There is no question but that i) can be admitted under s65C. How are ii) – vi) considered to fall under the rule in Myers? What the defence seek to rely upon in their case is the reward received by other co‑defendants vis‑à‑vis their role and to infer from that evidence that the low rewards said to have been offered to D1-D3 reflect their lack of knowledge of the greater scheme. Item ii) above does not fall into that category. Item iii) appears to, as do items iv) – vi) all of which appear to be inculpatory and could therefore be said to be admissible under Myers if it can be shown to be to the advantage of the defendants[1]. The difficulty lies however when this VRI is read in full and the accuracy of what is sought to be admitted is tested. AP3 only admits to carrying out observations of this and other currency exchanges and to taking photographs. He claims he was present at the scene at the material time to carry out further observations and to check if any police vehicles were present. He maintains he played no part in the substantive robbery and he received no reward[2].

10. I can find no admissions of interest against AP3, which can be relied upon by Mr Wong to the advantage of the defendants, and as a result, I do not find the exception to the hearsay rule in Myers engaged.

11. These are the facts sought to be admitted in respect of AP4 Tang Tsz‑chung:

i) AP4 was 18 years of age.
ii) AP4 was recruited to steal a suitcase for $30,000 reward.
iii) AP4 arrived at the scene at 4.30pm and waited till 7.10pm.
iv) AP4 was directed by Tsang Hon-hang (AP10) to steal suitcases from the vehicle.
v) AP4 stole 2 suitcases.
vi) AP4 was kicked by the driver Fung.
vii) AP4 dropped one of the suitcases.
viii) AP4 put the other suitcase in the getaway vehicle and then ran off.
ix) AP4 was arrested on 15 August 2018.
x) AP4 made admissions.
xi) AP4 claimed to have received a reward of between $20,000-30,000.

12. Item i) and x) are irrelevant. Items iv), vi), vii) and viii) do not trigger the rule. Items ii) and xi) may trigger the rule as going to reward. Items ii), iii) and v) may trigger the rule as going to role.

13. I cannot find any evidential basis for item ii). His admission on arrest and caution was “I only snatched two suitcases. I did not hit anyone”. AP4 clearly incriminates himself in his first VRI. The second VRI is of no assistance as the majority of his answers are “I am not clear” or similar. In any event, he makes no positive admissions as to the defendants in this case. He refers to his role but he does not give any direct assistance as to why he received between $20,000-30,000[3] from Ah Hong (AP10) and elsewhere states he received no offer of reward from the people he dealt with[4]. When pressed on why he should be given the money he said he did not know why[5]. It is interesting to note that AP10 in his VRI states that he received $200,000 but paid AP4 HK$50,000 of that. This is not admitted by AP4. It cannot possibly be reduced to an admitted fact that he received $20,000-30,000, as much as both parties might wish to infer it. Frankly, I am surprised that any counsel having read these interviews in full would think it proper to agree an admitted fact in the terms suggested. That being the case, it would not be proper to allude to AP4 in the admitted facts save as to his arrest as his actions are only relevant to role which are relevant to reward and the evidence of reward is far from satisfactory.

14. These are the facts sought to be admitted in respect of AP6 Wong Tsz-kin;

i) AP6 was arrested on 15 August 2018.
ii) AP6 made various admissions as to his participation in the robbery.

15. I fail to see why this AP has been included other than to admit he was arrested and pleaded guilty to this offence.

16. These are the facts sought to be admitted in respect of AP10 Tsang Hon-hang:

i) AP10 was 30 years of age.
ii) AP10 was recruited to rob an underground bank.
iii) AP10 was to be the driver of the getaway car for a reward of $200,000.
iv) AP10 arranged for false number plates for the getaway vehicle.
v) AP10 picked up AP12 & AP13.
vi) AP 10 waited in the vehicle in Middle Road.
vii) AP10 saw the suitcases snatched by AP4 and was instructed by AP12 to drive forward.
viii) AP4 placed a suitcase in the vehicle and AP10 drove off.
ix) On 9 August 2018 AP10 received $200,000 from AP12.
x) AP10 was arrested on 27 August 2018.
xi) AP10 made admissions as to his participation in the robbery.

17. Items i) and xi) are irrelevant. I can see no basis in law for the inclusion of items ii) or vi). Items iii) and ix) may be relevant to reward and items iv), v), vi) and viii) may be relevant to role.

18. AP10 had four VRIs. Only the first VRI is relevant to this application. There is evidence as to items iii) and ix) save that he claimed that he paid Ah Chung $50,000 from that sum and others, which, after exchange he received $130,000[6].

19. The evidence as to role and reward is relevant to the defendant’s case and may fall under the rule in Myers. It is therefore amenable to a s65C admission.

20. These are the facts sought to be admitted in respect of AP12 Cheng Yiu-man:

i) AP12 was 18 years of age.
ii) AP12 was recruited by an unidentified person on 7 August 2018.
iii) AP12 was to find a driver for a vehicle and for ‘snatching the money’.
iv) AP12 recruited AP10 the driver on 8 August 2018.
v) AP12 asked AP10 to recruit AP4.
vi) AP12 met up with AP4, AP10 and AP13 at approximately 5.00pm on 8 August 2018 in Tsim Sha Tsui.
vii) AP12, AP10, AP4 and AP13 went to Middle Road in a vehicle driven by AP10 and waited there.
viii) AP12 was in contact with that unidentified person (at ii) above) via WeChat.
ix) AP12 saw AP4 take two suitcases.
x) Only 1 suitcase was loaded onto the vehicle.
xi) AP10 drove away leaving AP4 behind.
xii) AP12 was given $300,000 by AP13.
xiii) AP12 passed $200,000 to AP10 as his reward.
xiv) AP12 left Hong Kong via Lok Ma Chau on 9 August 2018 at 2.00am.
xv) AP12 was arrested on 13 September 2018.
xvi) AP12 made admissions of his participation in the robbery.

21. Items i) and xvi) are irrelevant. Item xv) may be admitted. Items ii), viii), ix), x), xi) and xiv) do not fall under the rule. Items iii) –vii) may be relevant as to role. Items xii) and xiii) may be relevant as to reward.

22. There is a stark contradiction in the evidence given by AP12 and AP13 below. According to AP13, he is a mere bystander who had no knowledge of the robbery until it occurred and who fortuitously went on an all-expenses paid holiday to Macau provided by AP12 and asked AP12 to give him some of his booty once they were in Macau simply because he had none. AP13 identifies AP12 as Pi Tan. It was Pi Tan who invited him to be present in the vehicle in Middle Road that day. AP12 accepted that his nickname was Pi Tan and that he was working for someone on the Mainland. He understood his boss had an argument with someone over money and wanted to snatch it back by force. He had recruited AP10 that day. AP10 was to drive the car. AP 10 had recruited AP4. AP4 was to do the snatching. Both AP12 and AP13 agreed there were 3 people in the vehicle once AP4 had alighted. AP 10 was always the driver. AP12 was also in the vehicle and had moved to the front passenger seat but another person (not identified as AP13 but called “a fat guy” by AP12 was sitting in the back whilst AP13 said he was in the back along with AP12 in the front passenger seat. Given the fact that it is clear on their individual accounts that AP10, AP12 and AP13 were in the car at the relevant time then it is interesting to note that AP13 says AP12 had the bag with the money in but AP12 says AP13 had the money[7] and it was he who gave AP 12 the $300,00[8]. AP12 then describes a trip with AP13 overnight to the mainland in order to launder some of the money (approximately HK$1,000,00) and to test whether there would be any problems. AP13 makes no mention of this in his VRI. According to AP12 the laundered money was kept by AP13. They both then go to Macau. As for any reward, AP10 was to be paid $200,000. AP12 was to receive $300,000 but $200,000 of that was to go to AP10. AP12 makes no mention of any payment to AP4.

23. It would seem that there would be considerable difficulty drafting admitted facts which directly contradict one another, neither of which could be relied upon as evidence of the truth. On AP12’s account he received HK$100,000 and AP13 kept all the money at the behest of someone on the Mainland. On AP13’s account AP12 kept all of the money and gave AP13 HK$90,000. If the evidence of reward falls away then the evidence of role becomes irrelevant to the defence case and the rule in Myers is not triggered.

24. These are the facts sought to be admitted in respect of AP13 Chui Chun‑yuen:

i) AP13 was 31 years of age.
ii) AP13 was recruited by AP12 on 8 August 2018.
iii) AP13 boarded a vehicle driven by AP10 at 1.00pm.
iv) AP13 was driven to the vicinity of Far East Mansion and waited there.
v) AP12 told AP13 that they must wait until the time was right.
vi) AP4 was present in the vehicle.
vii) AP13 got out of the vehicle and went to the 7-11 store on Middle Road to buy a drink.
viii) On his return to the vehicle AP4 had disappeared.
ix) AP13 saw AP4 throw a suitcase into the black vehicle which drove off without AP4.
x) AP13 went to Macau with AP12 later that day and returned to Hong Kong 4 days later.
xi) AP13 was arrested on 7 June 2019 on entry into Hong Kong from the mainland.
xii) He made admissions to the police of his participation in the robbery.

25. The VRI in respect of AP13 is wholly exculpatory. Items i) and xii) are irrelevant. Items ii) –x) do not fall under the rule. There is no evidence as to role or reward. AP13 maintains that he asked for some of the proceeds in the possession of AP12 whilst they were in Macau but at no stage did he admit any part in the robbery other than sitting in the back of the vehicle and discarding the empty black suitcase at the request of AP12. I cannot see how admissions other than those as to arrest and plea may be included in any s65C as I presently understand the defence case to be.

	(A P Campbell‑Moffat) Judge of the Court of First Instance
	High Court

Mr Duncan Percy, counsel on fiat on behalf, for HKSAR

Mr Peter Pannu, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Maurice Tracy, instructed by Chaudhry Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

Mr Newman Wong, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the 3^rd defendant

[1] For these purposes and without more, it is assumed that each of the defendants relies upon the same defence save for their own role.

[2] Ctr 693-4 p 1931

[3] Ctr 1014 CB p2175

[4] Ctrs 916-920 CBpp2169-70

[5] Ctr 1203 CBp2188

[6]Inter alia Ctr 1446,1485,1494, 1575 of ist VRI

[7] Ctr 761 CB 3020

[8] Ctr 771 CB 3021

HCCC 138/2020

[2021] HKCFI 3812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2020

________________________

BETWEEN
	HKSAR
and
	ASIF AHFAQ MEHMOOD	1^st Defendant
	NABEEL	2^nd Defendant
	KWOK CHING-LOK	3^rd Defendant

________________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 22 November 2021

Date of Ruling: 23 November 2021

________________________

RULING

________________________

1. All three defendants are charged, together and with others, with Robbery contrary to s10(1) & (2) of the Theft Ordinance, Cap 210, which reads:

“(1) A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) Any person who commits robbery, or an assault with intent to rob, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for life.”

Plea to lesser charge

2. This is an application by all three defendants, led by Mr Pannu representing D1, to be allowed, on arraignment, to tender a plea to a charge not on the indictment but which he submits is a lesser offence to the charge of robbery. The offence to which the defendants previously wished to plead guilty, and indeed offered to plead guilty, was one of Wounding with intent contrary to s17 of the Offences Against the Person Ordinance, Cap 212, but the Court has now been informed that has changed to one of s19 Wounding (“s19 Wounding”). Section 19 reads:

“Any person who unlawfully and maliciously wounds or inflicts grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for 3 years”.

Procedure upon arraignment

3. Section 49 of the Criminal Procedure Ordinance, Cap 221 (“the CPO”) governs arraignment and s49(2) requires that the indictment be put and the defendant plead to it. Currently the indictment contains only the one count of robbery. Section 50 of the CPO states that a plea of not guilty deems the defendant to have “put himself upon the country for trial”.

4. Section 51(1)(b) allows the defendant to enter a plea of not guilty to the offence specifically charged on the indictment but guilty to another offence of which he might be found guilty on that[1]indictment. In this case, prima facie, it is accepted this means any offence prescribed as an alternative verdict to robbery as set out in the Schedule to the Theft Ordinance, Cap 210 (the “Schedule”). Alternative offences include theft, assault with intent to rob, blackmail, handling stolen goods and common assault. It does not include s19 Wounding. For his part, Mr Pannu submits the wording of s51(1)(b) also includes ‘lesser’ offences not included in the Schedule and available under common law but does not include wholly ‘separate’ offences available as arising upon the facts.

5. What then is the purpose of s51(2) which states:

“If on the trial of any information, charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence.[2]” (Emphasis added)

Is s51(2) intended to include offences not within the Schedule? Is it intended to extend the power of the Court to all lesser offences? Is it intended to include offences which are neither statutory alternatives nor other lesser offences but which arise upon the facts? According to Rogers JA in HKSAR v Pham Quang Minh [1999] 2 HKC 793; CACC 111/1998[3],

“It would be inappropriate in this judgment to attempt an exhaustive analysis of the meaning of section 51(2) and in particular as to what is comprehended by the words "amount to" on the basis of dictionary entries. It was argued by Mr. Cheung on behalf of the Prosecution that those words should be read as meaning equivalent in significance. This, in itself, is far too broad an encapsulation. The circumstances where it would be right to hold that the allegations in one charge amount to an allegation of another offence must be far more akin to a situation where the allegations in respect of the first charge constitute the ingredients of the second charge whether directly or by necessary implication. The further words of section 51(2), ‘or include’, clearly indicate that the ingredients of the second charge would fall within the larger category of the allegations in the first charge.”

This was foreshadowed by Macdougall VP in R v Wong Kwong‑Hei [1994] 1 HKCLR 30; CACC 16/1993[4]

“Mr. Cross submitted, and we accept, that the allegations in each of the charges included by implication an allegation of conspiracy to export unmanifested cargo. It seems to us, however, that section 51(2) is designed to cater for those cases in which the prosecution fails to prove the charge on which the accused stands trial but succeeds in proving that he is guilty of another offence which falls within the scope of the allegations in that charge.”

However, in Regina v Wilson [1984] AC 242, Lord Roskill stated that ‘amount to or include’ was clearly disjunctive. If either limb is satisfied then the stated consequences follow e.g. burglary expressly includes theft, riot impliedly includes common assault etc.

6. The question which arises therefore is whether the charge of robbery amounts to or includes a charge of s19 Wounding.

Amount to or Includes…expressly… another offence

7. In R v Lillis [1972] 2 QB 236 (in respect of s6(3) of the Criminal Law Act 1967 and an offence of burglary), per Lawton LJ, the test is to strike out from the words in the indictment all the averments which had not been proved; and that, if such deletion left particulars of another offence within the jurisdiction of the court of trial which the person charged could immediately defend, the jury should be asked to consider whether the other offence had been proved. ….The allegation in the indictment expressly included an allegation of another offence i.e. theft[5].

Amount to or Includes…by implication… another offence

8. In R v Wilson [1984] AC 242 affirming R v Lillis, Lord Roskill envisaged four possibilities arising from the subject wording:

“Firstly, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment expressly includes an allegation of another offence. If any one of those four requirements is fulfilled, then the accused may be found guilty of that other offence.”

9. I have also considered R v Maxwell [1989] 88 Cr App R 173 and on further appeal in (1990) 91 Cr App R 61, under which the appellant was charged with robbery. The prosecution case was that he had procured the commission of that offence by others. The appellant submitted that he had recruited others to commit a burglary with intent to steal and denied having any idea that a robbery would ensue as he had never intended any violence would be used upon the victims. The prosecution proceeded with the charge of robbery upon which there was evidence of an acknowledgment of possible assault by his co-defendants. The jury nevertheless asked whether they could convict of a lesser charge than robbery to which the judge answered in the negative. Mustill LJ, sitting in the Court of Appeal, stated that a judge was not obliged to leave the offence of burglary to the jury just because the defence asked for it even where the case disclosed it as a viable alternative to the offence charged. However, he noted it was the duty of the judge to use his powers to ensure that the issues left to the jury fairly reflected the issues which arose on the evidence and on the facts of the case procuring the commission of burglary could have been left to them. He noted that the duty of the jury is, properly directed, to decide the guilt or innocence of the offence charged and, whilst there was argument that a jury might be reluctant to allow a defendant to go free when there is clear evidence of criminal behaviour but perhaps not to the requisite standard, the Court should not assume they will not carry out their duty in accordance with the directions given. On appeal to the House of Lords, the Court held that it was the responsibility of the prosecution to frame the charge as they thought appropriate and at the end of their evidence to submit that evidence had established a strong prima facie case and that the jury should not be distracted from concentrating on the ingredients of that offence by the introduction into the trial of a lesser offence. Further, the trial judge was entitled to conclude that the alternative count of theft was so trifling that the jury’s attention upon the essential issue‑ whether the appellant intended violence to be used‑ should not be distracted.

10. Mr Pannu also relied upon R v Maxwell (Nolan) [1994] Crim LR 848. Unfortunately, the quote he seeks to rely upon is referred to in R v Coutts [2006] 1 WLR 2154; [2007] 1 Cr App R 6; [2006] Crim LR 1065, but cannot be found in the criminal law review report for Maxwell (Nolan) itself. Coutts was a case of murder where the alternative count of manslaughter was not left to the jury. That was the narrow question before the House of Lords but the broader question concerned the duties and discretion of trial judges to leave alternative verdicts of lesser included offences to the jury where there is evidence a rational jury could accept to support such a verdict but neither prosecution nor defence seek it. That of course is not the case here. Unusually it is the defence who seek the addition of a count for s19 Wounding. However, Mr Pannu submits there are matters of principle elucidated within the judgment which are apposite to their application before this court. Firstly, there is a public interest to be served to ensure that defendants should be convicted of offences they have been proved to have committed and not convicted of offences which they have not been proved to have committed. The interest of justice are not served if a defendant is convicted of a greater offence than he has committed and therefore receives a greater punishment and vice versa. The objective is to get it right and neither over nor under-convict. In some cases, where there is sufficient evidence to go before the jury regardless of the stance of counsel for the prosecution and/or defence, if the interest of justice requires it, the jury must be alerted to this principle and that is the responsibility of the trial judge[6].

Is s19 Wounding a lesser offence to robbery or is it simply another offence? Does that make a difference?

11. Whilst s19 Wounding is not an alternative charge available within the Schedule, the requirement for the use of force may impliedly, in some cases but not all, include s19 Wounding which requires the actus reus of wounding or inflicting grievous bodily harm. If I am wrong in that, it clearly arises out of the facts of the case. This Court will not and should not interfere in order to force the prosecution to proceed upon a charge it has chosen not to proceed upon. This does not mean that an amendment to the indictment cannot be made at some subsequent juncture, in appropriate circumstances after having heard all parties as to the advisability of such a course but I do not believe the Court should order such amendment at this stage under s23 of the CPO as Mr Pannu submits.

Should the jury be told of the defendant’s plea at this stage?

12. According to paragraph 10 of Mr Pannu’s submissions, what the defendants actually seek to do is to identify a charge of their own choosing to which they have indicated a willingness to plead and then ask the Court to place it before the jury either as one to which the defendants on an amended indictment can enter a plea of guilty (even though the prosecution has said it will not accept it) or, in the absence of an amended indictment, allow the jury to be aware of their wish to plead to some other charge not proceeded with or relied upon by the prosecution. That is not appropriate at this juncture. As I have said, it is for the prosecution to choose how they wish to proceed and for the prosecution to prove their case. I do not understand Mr Pannu’s comments at §11, when he goes on to submit that the defendant (D1) wishes to give the jury an opportunity to convict him of wounding. That cannot be right, if I have understood his application correctly. He wishes to have the indictment amended and he wishes to plead to s19 Wounding not have the jury convict him of it. If he cannot do that, and it is not added to the indictment by way of amendment, it follows from §11 that he believes it should be open to the jury to find him not guilty of robbery but guilty of s19 Wounding on the basis that it is a lesser offence or by way of later amendment to the indictment under s23 of the CPO.

S65C

13. Mr Pannu submits that the jury should be aware of the defendant’s desire to enter a plea. He suggests that this could be done by way of s65C. S65C of the CPO provides for the admission of ‘any fact of which oral evidence may be given in any criminal proceedings’. It is trite law that such evidence must be relevant and admissible. The charge is one of robbery. The discussions, negotiations and/or intimations by legal representatives to the Department of Justice or to the Court are hearsay. The plea tendered on arraignment and not accepted is a nullity. How then is it said to be relevant to the defence case in answer to a charge of robbery other than a consistent out of court statement? Under what rule of evidence do the defence say it is admissible? Even if, as Mr Tracy suggests, he could adduce the evidence through an instructing solicitor, surely that opens the door to the reasoning of the prosecution in rejecting the offer and in any event is a wholly collateral issue. I believe this suggestion is misconceived.

Prejudice

14. As for the argument that it will be highly prejudicial for D1 if there is only an option of robbery and no other charge, I am cognisant of the arguments in Maxwell; Coutts etc supra but that is not quite correct. There are several arguments going both ways. But to state the obvious, first and foremost, as the indictment currently stands, it is open to the jury, properly directed, to find D1 not guilty of robbery, at which point he will be acquitted and not at risk of any other charge. Second, it is in the nature of criminal prosecutions that the allegation against an accused is, in and of itself, prejudicial. That is why there are multiple safeguards to ensure that the mere fact of being proceeded against is outweighed by the directions given by the trial judge in summing up. That was alluded to by Mustill J in Maxwell. The issue, having been raised and declined by the prosecution many months ago, can be revisited at an appropriate stage perhaps prior to speeches and the summing up. If the prosecution wishes to proceed as they have chosen to do, on robbery alone, it will, at the very least as it now stands, be made clear to the jury that the defendants are not to be convicted on the basis that they intended either individually, or with others, to wound the victim but that they joined an enterprise with others to steal money which included the use of force evidenced by the wounding[7].

The practical reality - going forward

15. If an accused is arraigned on a count to which the jury could find him guilty of a lesser offence, he may offer a plea of not guilty as charged but guilty to that lesser offence[8]. Of course, the prosecution do not have to accept that plea[9] and if that is the case then the plea which has been entered on that basis is a nullity or has been deemed to be withdrawn[10]. Not as Mr Pannu suggests a nullity at some later stage. The jury are not in charge of that plea. They have no duty to return a verdict upon it as it is not before them. The prosecution must proceed upon the charge as indicted but they lay themselves at risk of a complete acquittal. If that were to happen, the plea to the lesser charge cannot be revived[11]. The Court cannot stop the defendants seeking to indicate to the Court, at the time of their arraignment upon the indictment that they wish to plead guilty to s19 Wounding. But, having done so, and the offer having not been accepted, that is the end of the matter. That offer is a nullity. Were the jury to find the defendants, or any one of them not guilty of robbery, it would not be open to the Court to then sentence them upon the plea to s19 Wounding as sought to be entered upon arraignment[12].

16. Mr Pannu nevertheless submits that the jury should be made aware of those pleas to s19 Wounding at the outset. There is no basis in law for this submission. It is for the prosecution to decide how they wish to proceed, upon what charge or charges and upon what evidence. If they do not accept a plea of guilty to an offence not on the indictment then that is the end of the matter. The offence upon which the defendants seek to enter a plea is not before the jury and cannot be before the jury as it is not a matter for them to resolve. They have not been put in charge of it. There is no means by which this Court can require the prosecution to lead it as part of their case. The defence seek to do so by asking the prosecution to admit it as part of their case. If it were admissible at all it could only be appropriate within the defence case. However, on the basis that during argument it was suggested that the defendants may also seek to plead to common assault which is clearly an alternative offence, Mr Percy for the prosecution has indicated that he would mention any such plea on the part of D3 in his Opening subject to any objection by D3 but he would not allude to any such plea from D1 or D2. These are all matters for Counsel.

Conclusion

17. As was stated by Ma CJ in HKSAR v Chau Yui Ming[2019] HKCFA 39 [13]:

“There are a number of important connected features of a criminal trial that ought to be reiterated in the present case. First, most important of all, is the public interest in ensuring a fair trial and the primary responsibility for this rests with the trial judge. Fairness applies to both the defence and the prosecution. Secondly, the defence must be free to conduct its defence as it sees fit in the way the evidence is treated and the way the defence is presented to the court, provided this is done reasonably and properly. Thirdly, the prosecution must also similarly be free to conduct the prosecution as it sees fit. All of this is of course subject to professional obligations and overriding duties owed to the court and the administration of justice.”

18. The Court in Chau supra was not asked to consider authorities other than those dealing with a situation where there was an alternative or lesser offence. The Court in Chau was in fact dealing with a question of whether the indictment should have been split into different counts. Even on that basis Ma CJ noted there were no authorities to support the application of the principle which they were considering to such a scenario. The same situation pertains before this Court at this time.

19. At present this Court does not believe it can or should direct the prosecution to proceed upon a separate charge which it has already considered and taken the view it does not wish to include in the indictment. That would be to tie the hands of the prosecution and it is a step too far even if s23 of the CPO allows for it. The defendants must enter whatever pleas they believe appropriate and it is for the prosecution to decide if they wish to accept those pleas. If they do not, then that is the end of the matter and the jury will not know of those pleas without a further application being made. All of the defendants have indicated that no such attempt will be made during cross-examination of the prosecution witnesses. Nor does this Court accept that it would be proper for the entry of any plea on arraignment or indication of any plea prior to arraignment be the subject of a s65C admitted fact.

20. However, in the interests of justice, the Court does not shut out the defence from making a future application in respect of the indictment if the evidence is sufficient to make such an application a proper one to make at the appropriate time.

	(A P Campbell‑Moffat) Judge of the Court of First Instance
	High Court

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Peter Pannu, instructed by Eric Cheung & Lau, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Maurice Tracy, instructed by Chaudhry Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

Mr Newman Wong, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the 3^rd defendant

[1] Emphasis added

[2] This wording is similar to s6(3) of the Criminal Law Act 1967: “Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he can be found guilty on an indictment specifically charging that other offence.” (Emphasis added)

[3] §16

[4] §22

[5] In this case a lesser offence of theft to a charge of burglary.

[6]Von Starck v The Queen [2000] 1 WLR 1270

[7] For the purposes of this application no distinction is made between the parts played by each defendant although the case of D3 is not on all fours with that of D1 and 2.

[8] S51(4) of the Criminal procedure Ordinance, cap 221.

[9]R v Coward (1979) 70 Cr App R 70

[10]R v Hazeltine [1967] 2 QB 857

[11]R v Kelly (1965) 49 Cr App R 352; HKSAR v Lee Wai Keung CACC 267/2010 §18

[12]Lee Wai Keung supra

[13] [27]

HKSAR v. ASIF AHFAQ MEHMOOD AND OTHERS

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