Case Detail

HCCC 148/2020

[2021] HKCFI 3192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

________________________

BETWEEN

	HKSAR
	and
	HUI Ka-lok, Sam (許嘉樂)	Defendant

________________________

Before: Hon Campbell-Moffat J in Court

Date of Hearing: 22 October 2021

Date of Ruling: 25 October 2021

________________________

R U L I N G

________________________

1. This is an application to render inadmissible what was allegedly said by the defendant after arrest and caution and any documentary evidence relied upon in support i.e. AE 724-751, the officer’s notebook. The allegations are:

(i)  That C&E officers surrounded and threatened the defendant by pointing firearms at him when he was sitting in a vehicle;
(ii)  They did not declare arrest nor was the defendant cautioned;
(iii)  They used foul language;
(iv)  The defendant was told to shut up;
(v)  The defendant was forced face down to the ground and was handcuffed behind his back;
(vi)  A post record was not made within the warehouse;
(vii)  It was not explained or read over to the defendant and the defendant did not sign the notebook entry at 20:40 hours on 27 August 2018 but instead he signed it on 28 August 2018 at 01:00 hours, at which time he:
a)  was directed by an officer to sign at certain points; and
b)  was not given the opportunity to read what it contained; and
c)  did not have it explained to him, and
(viii)  On 28 August 2018 and before the notebook entry was signed by the defendant he was induced by another officer to cooperate when that officer said that “if he were to cooperate, and sign the notebook, he would be released in three months.”

2. The defendant could not now independently identify the officers in question and therefore three officers were asked to attend to give evidence on the Voire Dire, which Mr Boyton accepts were the three officers who dealt with the defendant that day. They are COs 0785, 07334 and 1482.

3. CO 0785 gave evidence that he had driven up behind the defendant who was sitting in the driver’s seat of a car outside of the warehouse in question. He had identified himself and shown his warrant card. The defendant had been cooperative and exited the car. He had been arrested and cautioned at that stage in respect of the events on 22 August when the container had originally arrived into Hong Kong containing the dangerous drugs. He had done this in Cantonese but believed that the defendant understood what had been said. He then asked him a number of questions to which the defendant responded. This was done in Cantonese. He had told the officers he had driven someone to the site for reward which was $5,000. He did not know who had called him as there had been no caller display and he could not find that person. He had taken over the car from someone else and there were two people in the car at that time. He then identified the two people he had driven to the warehouse as the other two defendants in the case. They had gone inside the warehouse and the officer had made a post record of the arrest and caution plus questions and answers in to his notebook VDP204. By this time CO 07334 had gone through the Notice to Persons in Custody exercise as his guarding officer and had informed CO 0785 that the defendant could not read or write Chinese. As a result, the officer had his notebook entry translated into English, however he nevertheless read it out to the defendant in Chinese before CO 1482 read it out in English and gave the defendant an opportunity to read it for himself and to write the declaration. He then signed it in their presence. When they returned to the Headquarters, the officer was present for the body search and afterwards he copied the notebook and provided that copy to the defendant to be placed in his personal property. He kept his notebook with him thereafter until after the Video Recorded Interview which took place some hours later in the evening of 28 August. After the VRI, he handed over his notebook to his superior officer. That evidence was corroborated by the other two officers where applicable. There was a prima facie of voluntariness.

4. The defendant gave evidence upon the Voire Dire. He maintained that he was present because he had driven two people to the scene and was waiting for them under the instructions of his boss. He had noticed the officers get out of their vehicle carrying weapons. An officer had grabbed him and forced him out of the vehicle forcing him to the floor face down. He had tried to ask what was happening but had been told to shut up and had been handcuffed with his hands behind his back. He was then taken inside of the warehouse and forced to sit on the floor facing the wall. He does not say whether he was arrested and cautioned or at what time but he does say that he never said that he was to get a reward of $5,000. He maintained that he had not signed anything within the warehouse. He was in a room at C&E Headquarters at North Point when an unidentified officer had come into the room and told him to sign the notebook and the different places to sign as the defendant put it, “here, here and here”. He did this because that officer had said if he cooperated he would be released within three months. This conflicts somewhat with his later evidence under cross-examination when he said he had never initialled the notebook in various places. He also stated that he had only signed the Notice to Persons in Custody inside the Headquarters, although he accepted this document was in English and that the time and date on the document indicated that he had signed at an earlier time.

Submissions by the Defence

5. Mr Boyton relied in closing upon an apparent inconsistency in timing between the evidence of VDPWs1 and 2 in respect of the car search at the scene and the timing of the provision of the Notice to Persons in Custody. He pointed to that evidence in an effort to undermine the credibility of the officers. He maintains that the prosecution had not proved beyond reasonable doubt that the admissions made at the scene and the signing of the notebook to verify those admissions were given voluntarily.

Conclusion

6. I disagree. CO 0785, 07334 and 1482 gave what appeared to me to be credible evidence. It was not undermined as to timing. There clearly was a body search carried out by CO 07334 who was the guarding officer and he would have been expected to also provide the Notice, which bears the defendant’s signature. Indeed, it was CO 07334 who discovered the defendant could not read or write Chinese and notified CO 0785 in order for CO 0785 to have an officer present to translate the post record. How else would that have come about unless there was some form of documentary evidence and exercise? One therefore necessarily logically followed the other. There is equally no doubt that the car was searched and that would have been undertaken by the officer who was not the guarding officer. If those exercises, in some small part overlapped in timing, I am not going to hold it against them especially as it was not directly put to them to give them an opportunity to explain why there was an apparent overlap. I have no reason to disbelieve them. They denied all of the allegations put to them. I have no doubt that the whole of the post record procedure was carried at the location of the warehouse and thereafter that the notebook was kept in the possession of CO 0785. It would therefore be impossible for some unknown officer to be in possession of it in order to induce the defendant to sign it when in the C&E Headquarters. Given that rejection, the credibility of the defendant is undermined as to what occurred at the time of arrest and caution. I do not accept that with an operation as important as this one, that the C&E officer who was to arrest and caution the defendant would not carry it out properly. The defendant cooperated throughout and therefore there would be no need for force or a display of force as there were only three suspects within the location at that time. I do not accept he was dragged out of the car or forced to the ground and handcuffed. As I have no other evidence of his state of mind at that time there is no foundation to indicate his will was overcome either by fear of assault or by reason of inducement in order to render inadmissible the admissions he made upon arrest and caution, which I found to have been voluntarily made.

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

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Y.K. Lau & Chu, assigned by Director of Legal Aid, and Ms Kirsteen Lau, instructed by Y.K. Lau & Chu, on pro bono basis, for the defendant

HCCC 148/2020

[2021] HKCFI 3173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

________________________

BETWEEN

	HKSAR
	and
	HUI Ka-lok, Sam (許嘉樂)	Defendant

________________________

Before: Hon Campbell-Moffat J in Court

Date of Hearing: 21 October 2021

Date of Ruling: 22 October 2021

________________________

R U L I N G

________________________

1. This is an application by Mr Boyton on behalf of the defendant whereby he seeks to prevent the prosecution opening certain parts of its case which are prima facie hearsay. It is common ground that where the defence object to certain parts of the evidence, the usual practice is that no reference should be made of that evidence in Opening. That allows for any issue as to admissibility to be dealt with as and when the matter arises in trial and avoids the possibility of the jury being discharged. If, however, the Opening speech cannot be made coherently without reference to the disputed evidence, the Court may determine its admissibility as a preliminary issue. Whether or not it chooses to do so will turn upon the facts of the case and issues to be raised.

2. The evidence to which Mr Boyton objects and seeks to have rendered inadmissible arises from the witness statements of OCHOA VILLEGAS Luis Carlos, PW1 in the Committal Bundle (“PW1”), who is a co-defendant in these proceedings and who has pleaded guilty under HCCC 68/2020. He, and another co-defendant, await sentence after the trial of the defendant. In particular, Mr Boyton objects to references made by PW1 as to what was said to him by two categories of persons. The first being parties alleged to be part of the joint enterprise and the second being his wife and daughter. These statements he says are clearly hearsay. They include allegations that a group of four people, including the defendant, went to Columbia in April 2018, to set up the drug operation. In support of that evidence the prosecution seek to adduce the defendant’s travel record, which shows him leaving Hong Kong on 6 April 2018 and returning on 17 April 2018. His destination is unknown.

3. Mr Turnbull accepts that the evidence to which Mr Boyton objects is prima facie hearsay. However, he maintains that this is an allegation of a joint enterprise to which the defendant attached himself at a very early stage. PW1 was also a party to that joint enterprise and as such the prosecution are, firstly, allowed to adduce percipient evidence of the part that PW1 played which would include PW1 travelling to Hong Kong and meeting up with the defendant and his subsequent travel to China with his wife to meet John Andres Gomez Henad also known as ‘Mono’. Anything which he said or did in furtherance of the joint enterprise would be admissible as against the defendant so long as there was independent evidence of his involvement in the enterprise. This, Mr Turnbull says, includes what was said between PW1 and any other party to the enterprise including Mono. Any conversation PW1 had with Mono after the enterprise is entered into and during its operation would be admissible against the defendant. It was in China that Mono explained the role of the defendant. Mr Turnbull says this conversation represents ongoing communication between the parties to update the common enterprise; explain individual roles and to progress their common purpose. That falls both to be part of the res gestae of the case but also is an exception to the hearsay rule as being acts and declarations in furtherance of the common enterprise. As a result of what he was instructed to do by Mono whilst in China, PW1 met up with Sam again in Hong Kong. He can identify Sam and say that the Sam he identifies is whom he believed to be identified as Sam by Mono. He is entitled to say that he understood from Mono that it was Sam’s role to help him purchase the appropriate tools for the job and that the Sam who is in the dock, did just that. Mr Turnbull also submits that he is entitled to describe what Mono said about the role played by Sam at an earlier stage in the setting up of the importation of the drugs. He submits that is necessary background for PW1 to know in order to be able to trust Sam in Hong Kong and to understand what can be expected of him i.e. for Sam to know where the drugs were hidden. PW1 can give percipient evidence that Sam knew the purpose for which the tools were to be purchased and that Sam paid for those tools. Mono is a named party to the joint enterprise. The acts and declarations of parties to a joint enterprise are admissible against other parties to a joint enterprise so long as there is independent evidence of that enterprise and of the defendant’s participation in it. Therefore, the prosecution may adduce the evidence of what was said by Mono to establish the defendant’s bonafides within the scheme including that Sam had gone to Columbia to arrange the importation of drugs to Hong Kong and had met with Mono in Columbia. Mono was a percipient witness as to that meeting and what was said.

4. In support of that Mr Turnbull relies upon the independent evidence of the existence of the joint enterprise and what he says will be an irresistible inference that the defendant was a party to it when taking into account the CCTV footage of all three defendants inside the warehouse at a time immediately before PW1 was using specialist equipment to open the welded container doors. As for the travel history of the defendant, that is circumstantial evidence from which an inference may be drawn.

5. Mr Turnbull takes this argument one stage further and suggests that the evidence against Li Ka-kuen, who is also named upon the indictment, which comes from PW1’s wife and is prima facie hearsay, also falls under the acts and declarations exception, because the prosecution allege that she too played a role. There is no independent evidence that is the case although she was present during the Hong Kong and China visits. It is unlikely that PW1 will implicate his wife. So far as this evidence is concerned it may become admissible as the evidence is heard or it may not, but it would not be appropriate for Mr Turnbull to mention it in Opening and he has conceded that he will not do so.

The Law

6. The issue before the Court is the admissibility of conversations between members of a joint enterprise in the absence of the defendant where that conversation includes not simply acts and declarations in furtherance of a joint enterprise but also reference to historical events or narrative. In R v Jones & Others [1997] 2 Cr App R 119, Counsel for the appellant Barham[1], objected to the admissibility of telephone records of conversations between other parties which referred directly or indirectly to the appellant. It was accepted that where defendants are jointly charged with a substantive offence, hearsay evidence may be admissible if there is prima facie evidence of the common purpose and that evidence of what was said in the absence of a defendant may be admissible if what was said was in furtherance of the common purpose. But it was submitted, as it is here, that whilst evidence by way of instructions to take some further step in the enterprise would be admissible but evidence referring to what had already been done would not.

7. This is the issue at hand. The Court in Jones supra relied upon Dixon CJ in Tripodi v R (1961) 104 CLR 1 where it was said[2]:

“From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”

That passage was cited with approval in R v Gray [1995] 2 Cr App Rep 100 and was accepted in Jones supra as correct in law. The issue was whether the words spoken and sought to be relied upon were more that narrative and could be regarded as words spoken in pursuit of and for the purpose of advancing the common enterprise. That is clearly the test here but it is helpful to consider the way the court in Jones applied that test. The prosecution relied upon the disputed conversations to suggest that, taken as a whole, reference to past events or to comment are of no consequence because the whole of the conversation was required in order to advance the common purpose.

8. There were five conversations relied upon in Jones which were the subject of dispute[3]. It can be seen that these cover a number of scenarios. They include references to events where there is no mention of the defendant; events which form part of the greater res gestae and narrative as to events to inform and keep participants update, all of which relate to other evidence before the Court.

9. In this case, the prosecution wish to rely upon what was alleged to be said by Mono to PW1 whilst in China and, I suspect, during telephone and other communications to the effect that the defendant had been part of a group who went to Columbia in April 2018 to purchase drugs and to arrange the onward transportation of those drugs to Hong Kong. There is independent evidence from a number of sources of the involvement of the defendant in this common enterprise. The acts and declarations relied upon in respect of the conversations with Mono fall within the various categories identified in Jones supra.

Conclusion

10. Having heard both parties on this preliminary issue, as it currently stands the evidence which falls to be given under an exception to the rule against hearsay as acts or declarations in furtherance of a common design may be relied upon in Opening and may be proven in evidence in trial subject to the prosecution being able to do so in the normal way.

11. The evidence in respect of Li Ka-kuen, may not be relied upon in Opening. If the prosecution establish that they can render it admissible in the manner suggested, then it can be raised again at the appropriate time during the trial.

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

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Y.K. Lau & Chu, assigned by Director of Legal Aid, and Ms Kirsteen Lau, instructed by Y.K. Lau & Chu, on pro bono basis, for the defendant

[1] [1997] 1 Cr App R p124E

[2] At p7

[3] Jones supra p129C-130F

HCCC 148/2020

[2021] HKCFI 3167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

________________________

BETWEEN

	HKSAR
	and
	HUI Ka-lok, Sam (許嘉樂)	Defendant

________________________

Before: Hon Campbell-Moffat J in Court

Date of Hearing: 21 October 2021

Date of Ruling: 21 October 2021

________________________

R U L I N G

________________________

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

“FIRST COUNT
STATEMENT OF OFFENCE
Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134 and s159G of the Crimes Ordinance, Cap.200
PARTICULARS OF OFFENCE
HUI Ka-lok, Sam, between the 22^nd day of August 2018 and the 27^th day of August 2018, both dates inclusive, in Hong Kong, together with HU Mingjie and OCHOA VILLEGAS Luis Carlos, attempted to unlawfully traffic in a dangerous drug, namely 22.680 kilogrammes of a solid containing 18.692 kilogrammes of cocaine.
SECOND COUNT
STATEMENT OF OFFENCE
Doing an act tending and intended to pervert the course of justice, contrary to Common Law and punishable under section 101I (1)  of the Criminal Procedure Ordinance, Cap 221.
PARTICULARS OF OFFENCE
HUI Ka-lok, Sam, on a day between the 1^st day of October 2019 and the 30th day of November 2019, at Lai Chi Kok Reception Centre, No. 5 Butterfly Valley Road, Kowloon, in Hong Kong, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he instructed OCHOA VILLEGAS Luis Carlos, a co-defendant in the same criminal proceeding, to write a letter to the Department of Justice for the purpose of exonerating the said Hui Ka-lok, Sam, with assertions that he knew to be untrue, namely:
1)  the said Hui Ka-lok, Sam did not know the reason and purpose of the said OCHOA VILLEGAS Luis Carlos purchasing the tools;
2)  the role of the said HUI Ka-lok, Sam was limited to driving the said OCHOA VILLEGAS Luis Carlos to purchase the tools; and
3)  the said HUI Ka-lok, Sam did not tell the said OCHOA VILLEGAS Luis Carlos the way of opening the container.”

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

“FIRST COUNT
STATEMENT OF OFFENCE
Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap.134 and s159G of the Crimes Ordinance, Cap 200
PARTICULARS OF OFFENCE
HUI Ka-lok, Sam, between ~~the 22^nd day of August 2018~~ a date on or about the 4^th day of April, 2018 and the 27^th day of August 2018, both dates inclusive, in Hong Kong, together with Hu Mingjie and OCHOA VILLEGAS Luis Carlos, John Andres Gomez Henad, also known as Mono, LI Ka-kuen and other persons unknown, attempted to unlawfully traffic in a dangerous drug, namely 22.680 kilogrammes of a solid containing 18.692 kilogrammes of cocaine.
SECOND COUNT
STATEMENT OF OFFENCE
Doing an act tending and intended to pervert the course of justice, contrary to Common Law and punishable under section 101I (1)  of the Criminal Procedure Ordinance, Cap 221.
PARTICULARS OF OFFENCE
HUI Ka-lok, Sam, on a day between the 1^st day of October 2019 and the 30th day of November 2019, at Lai Chi Kok Reception centre, No. 5 Butterfly Valley Road, Kowloon, in Hong Kong, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he instructed OCHOA VILLEGAS Luis Carlos, a co-defendant in the same criminal proceeding, to write a letter to the Department of Justice ~~for the purpose of exonerating the said Hui Ka-lok, Sam,~~ with assertions that he knew to be untrue, namely:
1)  the said Hui Ka-lok, Sam did not know the reason and purpose of the said OCHOA VILLEGAS Luis Carlos purchasing the tools;
2)  the role of the said HUI Ka-lok, Sam was limited to driving the said OCHOA VILLEGAS Luis Carlos to purchase the tools; and
3)  the said HUI Ka-lok, Sam did not tell the said OCHOA VILLEGAS Luis Carlos the way of opening the container.

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

Count Two

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

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

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

Conclusion

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

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

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Y.K. Lau & Chu, assigned by Director of Legal Aid, and Ms Kirsteen Lau, instructed by Y.K. Lau & Chu, on pro bono basis, for the defendant

HKSAR v. HUI KA LOK, SAM

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