HCCC149/2018 HKSAR v. YIM YU HANG AND OTHERS - LawHero
HCCC149/2018
高等法院（刑事）Barnes J2/4/2019[2019] HKCFI 890
HCCC149/2018
Subject to reporting restrictions as per paragraph 11 of this Ruling
A A
HCCC 149/2018
B B
[2019] HKCFI 890
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
CRIMINAL CASE NO 149 OF 2018 E
F F
BETWEEN
G G
HKSAR
H H
and
I YIM YU HANG 1st Defendant I
J CHOW CHING YIN 2nd Defendant J
K WONG WAI HO 3rd Defendant K
L L
M Before: Hon Barnes J in Court M
N
Date of Ruling: 3 April 2019 N
O O
P P
RULING ON ADMI SSIBI LIT Y OF
Q W H AT S A P P M E S S A G E S Q
R R
S 1. I rule in favour of the prosecution that certain WhatsApp S
messages extracted from Lee Kang Yiu’s iPhone (and viewed together
T T
with corresponding messages extracted from D3’s phone, which I will not
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 2 - A
list out here), and certain messages extracted only from D3’s mobile
B B
phone, are admissible against D1 and D2. As indicated earlier, I will
C C
give my reasons in writing later.
D D
2. I will use the tables prepared by the prosecution (as shown in
E their written submission dated 4 March 2019) to indicate whether any E
particular messages are admissible against each of the three defendants,
F F
and if so, on what basis.
G G
A. AGAINST D1
H H
Messages extracted from Lee’s iPhone
I I
J
(1) Messages nos. 1369-1373, 1385, [1388], 1386, 1392-1394, J
1396, 1397, 1399, 1400, 1406-1410
K K
(a) Messages nos. 1369-1373 - not admissible as they are
L
too vague as to being relevant. L
(b) Messages nos. 1385, 1386, 1388, 1392, 1393, 1394,
M M
1396, 1397, 1399, 1400, 1406-1410 – admissible as
N declaration against interest. N
(2) Messages nos. 1761-1763, 1793
O O
• All messages admissible for non-hearsay use.
P P
(3) Messages nos. 1795, 1800, 1801, 1806-1808
Q Q
• All messages admissible for non-hearsay use.
R (4) Messages nos. 3709-3711, 3714 R
S
• All messages admissible for non-hearsay use. S
(5) Message no. 3715
T T
• Admissible as declaration against interest.
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 3 - A
B (6) Messages nos. 3742-3744 B
• All admissible for non-hearsay use.
C C
(7) Messages nos. 3754, 3755, 3757
D D
• Message no. 3754 shows a screen shot with Bosco’s
E audio. Note that immediately after message 3755 E
(Guys plz prepare for tomorrow) there is a message
F from Boss “@[sword], @Benard Chow and @Mou F
Chai” before message 3757 (I take him down when I
G G
isolate him with 06). All are admissible as
H declaration against interest. H
(8) Messages nos. 3789-3791
I I
• All admissible as declaration against interest.
J J
(9) Messages nos. 3951, 3952, 3956, 3957, 3959, 3960
K • All admissible as declaration against interest. K
L (10) Messages nos. 4006-4008, 4010-4014 L
• All admissible as declaration against interest.
M M
(11) Messages nos. 4015-4016
N N
• All admissible for non-hearsay use.
O (12) Messages nos. 4148, 4156 O
P • All admissible for non-hearsay use. P
(13) Messages nos. 4185, 4186, 4189, 4191, 4192
Q Q
• All admissible for non-hearsay use.
R R
(14) Messages nos. 4195-4197
S • All admissible as declaration against interest. S
T
(15) Messages nos. 4198-4201 T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 4 - A
B • All admissible for non-hearsay use. B
(16) Message no. 4205
C C
• Message no. 4205 (audio message: Hey Benard, if on
D the hill you see anyone hiking, jogging and such, you D
report over here), is admissible as declaration against
E E
interest.
F (17) Message no. 4206 F
G • Admissible for non-hearsay use. G
(18) Message no. 4210
H H
• Admissible for non-hearsay use.
I I
(19) Message no. 4215
J • This audio message: (Meow, wait a bit longer, we are J
still packing stuff, cleaning stuff), admissible as
K K
declaration against interest.
L (20) Message no. 4222 L
M • The prosecution did not refer to this message, which M
might be an oversight (This is an audio message from
N D1: you tell him we are still doing testing, there is a N
problem with the equipment). This is admissible as
O O
declaration against interest.
P P
Messages extracted from D3’s phone only
Q Q
(1) Messages nos. 327, 328
R R
• All admissible as declaration against interest.
S S
(2) Messages nos. 314, 315, 321, 322, 327, 328, 330, 332, 333,
T 335 T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 5 - A
B • All admissible as declaration against interest. B
(3) Messages nos. 652, 653
C C
• All admissible as declaration against interest.
D D
(4) Messages nos. 1303, 1304
E • All admissible as declaration against interest. E
F
(5) Messages nos. 3666, 3668, 3697, 3712, 3714 F
• All admissible as declaration against interest.
G G
H B. AGAINST D2 H
I
Messages extracted from Lee’s iphone I
3. As against D2, all those messages listed by the prosecution
J J
in the written submission dated 4 March 2019 under headings (1) (2) (3)
K
(4) and (5) are not admissible against D2 as D2’s position was no K
L
different from other members of the same WhatsApp chat Group who are L
not charged with any offence. However, D2’s position changed when he
M M
indicated his participation to the joint enterprise at message no. 3759.
N N
(6) Messages no. 3754, 3755, 3757, [3759]
O • D2’s message at 3759 is admissible against him as O
declaration against interest, when read together with
P P
the other messages under this heading, in particular,
bearing in mind the reference to @Benard and @Mou
Q Q
Chai between message nos. 3755 and 3757.
R R
(7) Messages nos. 3789-3791
S • All admissible under co-conspirator’s rule. S
(8) Messages nos. 3951, 3952, 3956, 3957, 3959, 3960
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 6 - A
B • All admissible under co-conspirator’s rule. B
(9) Messages nos. 4006-4008, 4010-4014
C C
• All admissible under co-conspirator’s rule.
D D
(10) Messages nos. 4015-4016
E • All admissible under co-conspirator’s rule. E
F
(11) Messages nos. 4148, 4156 F
• All admissible under co-conspirator’s rule.
G G
(12) Messages nos. 4185, 4186, 4189, 4191, 4192
H H
• All admissible under co-conspirator’s rule.
I (13) Messages nos. 4195 – 4197 I
• All admissible under co-conspirator’s rule.
J J
(14) Messages nos. 4198-4201, 4203
K K
• All admissible under the co-conspirator’s rule.
L Further, note that at 4203 D2, in response to D1’s L
description of what was happening to Bosco, at
M M
23:06:16, said “KT now” which the jury can infer to
N
mean D2 was at Kwun Tong at 23:06:16, which is an N
admission by D2 and another piece of independent
O evidence as to D2’s participation in the joint O
enterprise.
P P
Q Q
R R
S S
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 7 - A
B (15) Message no. 4205 B
• This is an audio message from D1: hey Benard, if on
C C
the hill you see anyone hiking, jogging and such, you
D report over here. This is admissible against D2 as D
D1 was instructing D2 to act in pursuance of the joint
E E
enterprise.
F (16) Messages no. 4206 F
• Admissible under co-conspirator’s rule.
G G
(17) Messages nos. 4210-4214
H H
• Admissible under co-conspirator’s rule, in particular
I when D2 messaged “Ok” and “k” indicating his I
acknowledgment of what had been said by D1 and
J J
Wong Long Ki (WLK).
K (18) Message no. 4215 K
• This is an audio message from D1 to WLK: Meow,
L L
wait a bit longer we are still packing stuff, cleaning
M stuff. The contents of this message indicated that the M
joint enterprise had completed and they were tidying
N N
up. The co-conspirator’s rule is no longer applicable
O so this is not admissible. O
P Messages between D2 and D3 extracted from D3’s phone P
Q Q
(1) Messages nos. 49, 52
R • All admissible against D2 as declaration against R
interest, in particular with reference to his assertion
S S
that he would take part in the joint enterprise (at
T
message no. 3759 on Lee’s phone). T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 8 - A
B (2) Message no. 62 B
• Admissible against D2 as declaration against interest,
C C
in particular with reference to his assertion that he
D would take part in the joint enterprise (at message no. D
3759 on Lee’s phone).
E E
4. As to the messages extracted from the WhatsApp Group
F F
from D3’s phone between March and April 2017 (ie before Lee became a
G member of the Group in May 2017, so not shown on Lee’s phone) listed G
H
by the prosecution under headings (1) (2) and (3), I rule these H
inadmissible against D2.
I I
5. Even though D2 responded by messaging “yay” at 654 after
J J
D1 messaged “so we can fuck him whatever we like in night game”, such
K K
an expression is not clear enough to bring these messages under any
L
exception to the hearsay rule, nor can they be used for non-hearsay L
purpose against D2, as I have already ruled that prior to D2 indicating his
M M
willingness to participate in the joint enterprise, D2’s position was the
N same as other members of the Group and the co-conspirator’s rule does N
not apply.
O O
P C. AGAINST D3 P
Q
6. I will again use the tables prepared by the prosecution in Q
their written submission dated 4 March 2019. As far as D3 is
R R
concerned, the prosecution only needs to rely on the WhatsApp messages
S extracted from D3’s own phone, whether such messages were in the S
Group or not.
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 9 - A
7. Save for the messages nos. 8679 - 8685 (which correspond
B B
with messages nos. 1369-1375 on Lee’s phone which I already ruled
C C
inadmissible) I rule all the messages listed by the prosecution admissible
D
against D3 for non-hearsay use. D
E Severance of trial of D1 and D2 from D3 E
F 8. History of this case showed that this Court was reluctant, at F
first, to sever the trial of D1 and D2 from D3. However, this case has
G G
evolved dramatically, and totally unexpectedly, from the time this Court
H made the earlier ruling. Then, there was no issue in relation to the H
WhatsApp messages. The only issue was in relation to the
I I
Video-recorded Interviews admissible against D3, which required careful
J J
redaction so as not to be prejudicial to D1 and D2.
K K
9. Now, with my ruling on the WhatsApp messages, it is clear
L L
that the amount or quantity of WhatsApp messages the prosecution can
M
adduce against D3 is more than those the prosecution can adduce against M
D1 and / or D2, with the added complication that the jury will be asked to
N N
consider the truth of some of the messages in relation to D1 and D2, but
O not in the case of D3. This issue in relation to the WhatsApp messages, O
together with the additional problem the prosecution will have to face
P P
regarding redaction (which may put D3 in a disadvantageous position, if
Q redaction is done), convinced me that the most proper and fairest way Q
forward is to sever the trial of D1 and D2 from D3.
R R
S 10. I therefore ordered that the trial of D1 and D2 be severed S
from the trial of D3.
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 10 - A
11. Having regard to the need to avoid a substantial risk of
B B
prejudice to the administration of justice in the present on-going trial, it is
C C
ordered that the publication (in any form) of any report of the proceeding
D
concerning the admissibility of the WhatsApp messages and the reason D
for severance of the trial of D1 and D2 from D3 be prohibited until the
E E
conclusion of this trial or until further order.
F F
G G
H H
(Judianna Barnes)
Judge of the Court of First Instance
I I
High Court
J J
K Mr Wei, Mark HT, leading Mr Tso, Yat Long, Counsel-on-fiat, assigned K
by of Department of Justice, for HKSAR
L L
Mr Grounds, Christopher, leading Mr Lo, Paulinus, Counsel instructed by
M
Messrs Francis Kong & Co, Solicitors, assigned by the Director of M
Legal Aid for the 1st defendant
N N
Mr McNamara, John Patrick, Counsel instructed by Messrs SH Chan &
Co, Solicitors, assigned by the Director of Legal Aid for
O the 2nd defendant O
P Mr Chan, Siu-ming, leading Mr Lam Ka-yau, Michael, Counsel P
instructed by Messrs Stephen Lo & PY Tse, Solicitors, assigned by
Q the Director of Legal Aid for the 3rd defendant Q
R R
S S
T T
U U
V V
HKSAR v. YIM YU HANG AND OTHERS
案件基本資料
案件名稱：HKSAR v Yim Yu Hang, Chow Ching Yin & Wong Wai Ho
法院：高等法院原訟法庭 (CFI)
法官：Barnes J
判決日期：2019年4月3日
案情摘要
本案涉及三名被告（D1, D2, D3）被指控參與某項 joint enterprise。控方提交了從 Lee Kang Yiu 及 D3 的 iPhone 中提取的大量 WhatsApp 訊息，旨在證明三名被告在該犯罪企圖中的角色及參與程度。
核心法律爭議
核心 legal issue 在於從不同手機提取的 WhatsApp 訊息是否 admissible against 各被告。爭議點在於該等訊息是否屬於 hearsay，以及是否符合 declaration against interest 或 co-conspirator’s rule 等例外情況，以允許其在庭上作為證據。
判決理由
法官根據證據性質將訊息分類：(1) 部分訊息因構成 declaration against interest 而 admissible；(2) 部分訊息僅用於 non-hearsay use 而 admissible；(3) 對於 D2，法官認定其在特定訊息（no. 3759）後才加入 joint enterprise，因此之後的訊息可根據 co-conspirator’s rule 採納，但在此之前的訊息則不可採納。
### 案件基本資料
- 案件名稱：HKSAR v Yim Yu Hang, Chow Ching Yin & Wong Wai Ho
- 法院：高等法院原訟法庭 (CFI)
- 法官：Barnes J
- 判決日期：2019年4月3日
### 案情摘要
本案涉及三名被告（D1, D2, D3）被指控參與某項 joint enterprise。控方提交了從 Lee Kang Yiu 及 D3 的 iPhone 中提取的大量 WhatsApp 訊息，旨在證明三名被告在該犯罪企圖中的角色及參與程度。
### 核心法律爭議
核心 legal issue 在於從不同手機提取的 WhatsApp 訊息是否 admissible against 各被告。爭議點在於該等訊息是否屬於 hearsay，以及是否符合 declaration against interest 或 co-conspirator’s rule 等例外情況，以允許其在庭上作為證據。
### 判決理由
法官根據證據性質將訊息分類：(1) 部分訊息因構成 declaration against interest 而 admissible；(2) 部分訊息僅用於 non-hearsay use 而 admissible；(3) 對於 D2，法官認定其在特定訊息（no. 3759）後才加入 joint enterprise，因此之後的訊息可根據 co-conspirator’s rule 採納，但在此之前的訊息則不可採納。
### 引用案例與條文
未有特別引用
### 裁決與命令
法官裁定部分 WhatsApp 訊息對 D1, D2 及 D3 可採納（具體詳見判決表）。此外，由於對 D3 可採納的證據量遠超 D1 及 D2，且涉及複雜的 redaction 問題，法官決定將 D1 及 D2 的審訊與 D3 分離（severance of trial），並對本裁定內容實施 reporting restrictions。
### 判決啟示
本案強調了在 joint enterprise 案件中，co-conspirator’s rule 的適用時間點至關重要，必須證明被告已參與共謀。同時，當不同被告面對的證據量及性質存在顯著差異時，法院為確保公平審訊，可能會採取 severance 措施。
---
### 免責聲明
本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details
- Case Name: HKSAR v Yim Yu Hang, Chow Ching Yin & Wong Wai Ho
- Court: Court of First Instance (CFI)
- Judge: Barnes J
- Date of Judgment: 3 April 2019
### Factual Background
The case involves three defendants (D1, D2, and D3) allegedly involved in a joint enterprise. The prosecution sought to introduce numerous WhatsApp messages extracted from the iPhones of a witness (Lee Kang Yiu) and D3 to prove the defendants' participation in the alleged criminal activity.
### Key Legal Issues
The primary legal issue was the admissibility of specific WhatsApp messages against each defendant. The court had to determine if the messages were hearsay and whether they fell under exceptions such as declarations against interest or the co-conspirator's rule.
### Ratio Decidendi
The judge analyzed the messages based on their nature: some were admitted as declarations against interest, others for non-hearsay use. For D2, the judge ruled that the co-conspirator's rule only applied after D2 indicated participation in the joint enterprise (message no. 3759), rendering earlier messages inadmissible.
### Key Precedents & Statutes
None prominently cited
### Decision & Orders
The court ruled on the admissibility of specific messages for each defendant. Crucially, the judge ordered the severance of the trial of D1 and D2 from D3 to avoid prejudice due to the disparity in evidence and redaction complexities. Reporting restrictions were imposed on the ruling.
### Key Takeaways
The judgment highlights the temporal application of the co-conspirator's rule, requiring proof of participation before messages can be admitted. It also demonstrates the court's willingness to order severance when the volume and nature of evidence against co-defendants differ significantly, potentially compromising a fair trial.
---
### Disclaimer
This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.
Subject to reporting restrictions as per paragraph 11 of this Ruling
A A
HCCC 149/2018
B B
[2019] HKCFI 890
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
CRIMINAL CASE NO 149 OF 2018 E
F F
BETWEEN
G G
HKSAR
H H
and
I YIM YU HANG 1st Defendant I
J CHOW CHING YIN 2nd Defendant J
K WONG WAI HO 3rd Defendant K
L L
M Before: Hon Barnes J in Court M
N
Date of Ruling: 3 April 2019 N
O O
P P
RULING ON ADMI SSIBI LIT Y OF
Q W H AT S A P P M E S S A G E S Q
R R
S 1. I rule in favour of the prosecution that certain WhatsApp S
messages extracted from Lee Kang Yiu’s iPhone (and viewed together
T T
with corresponding messages extracted from D3’s phone, which I will not
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 2 - A
list out here), and certain messages extracted only from D3’s mobile
B B
phone, are admissible against D1 and D2. As indicated earlier, I will
C C
give my reasons in writing later.
D D
2. I will use the tables prepared by the prosecution (as shown in
E their written submission dated 4 March 2019) to indicate whether any E
particular messages are admissible against each of the three defendants,
F F
and if so, on what basis.
G G
A. AGAINST D1
H H
Messages extracted from Lee’s iPhone
I I
J
(1) Messages nos. 1369-1373, 1385, [1388], 1386, 1392-1394, J
1396, 1397, 1399, 1400, 1406-1410
K K
(a) Messages nos. 1369-1373 - not admissible as they are
L
too vague as to being relevant. L
(b) Messages nos. 1385, 1386, 1388, 1392, 1393, 1394,
M M
1396, 1397, 1399, 1400, 1406-1410 – admissible as
N declaration against interest. N
(2) Messages nos. 1761-1763, 1793
O O
• All messages admissible for non-hearsay use.
P P
(3) Messages nos. 1795, 1800, 1801, 1806-1808
Q Q
• All messages admissible for non-hearsay use.
R (4) Messages nos. 3709-3711, 3714 R
S
• All messages admissible for non-hearsay use. S
(5) Message no. 3715
T T
• Admissible as declaration against interest.
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 3 - A
B (6) Messages nos. 3742-3744 B
• All admissible for non-hearsay use.
C C
(7) Messages nos. 3754, 3755, 3757
D D
• Message no. 3754 shows a screen shot with Bosco’s
E audio. Note that immediately after message 3755 E
(Guys plz prepare for tomorrow) there is a message
F from Boss “@[sword], @Benard Chow and @Mou F
Chai” before message 3757 (I take him down when I
G G
isolate him with 06). All are admissible as
H declaration against interest. H
(8) Messages nos. 3789-3791
I I
• All admissible as declaration against interest.
J J
(9) Messages nos. 3951, 3952, 3956, 3957, 3959, 3960
K • All admissible as declaration against interest. K
L (10) Messages nos. 4006-4008, 4010-4014 L
• All admissible as declaration against interest.
M M
(11) Messages nos. 4015-4016
N N
• All admissible for non-hearsay use.
O (12) Messages nos. 4148, 4156 O
P • All admissible for non-hearsay use. P
(13) Messages nos. 4185, 4186, 4189, 4191, 4192
Q Q
• All admissible for non-hearsay use.
R R
(14) Messages nos. 4195-4197
S • All admissible as declaration against interest. S
T
(15) Messages nos. 4198-4201 T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 4 - A
B • All admissible for non-hearsay use. B
(16) Message no. 4205
C C
• Message no. 4205 (audio message: Hey Benard, if on
D the hill you see anyone hiking, jogging and such, you D
report over here), is admissible as declaration against
E E
interest.
F (17) Message no. 4206 F
G • Admissible for non-hearsay use. G
(18) Message no. 4210
H H
• Admissible for non-hearsay use.
I I
(19) Message no. 4215
J • This audio message: (Meow, wait a bit longer, we are J
still packing stuff, cleaning stuff), admissible as
K K
declaration against interest.
L (20) Message no. 4222 L
M • The prosecution did not refer to this message, which M
might be an oversight (This is an audio message from
N D1: you tell him we are still doing testing, there is a N
problem with the equipment). This is admissible as
O O
declaration against interest.
P P
Messages extracted from D3’s phone only
Q Q
(1) Messages nos. 327, 328
R R
• All admissible as declaration against interest.
S S
(2) Messages nos. 314, 315, 321, 322, 327, 328, 330, 332, 333,
T 335 T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 5 - A
B • All admissible as declaration against interest. B
(3) Messages nos. 652, 653
C C
• All admissible as declaration against interest.
D D
(4) Messages nos. 1303, 1304
E • All admissible as declaration against interest. E
F
(5) Messages nos. 3666, 3668, 3697, 3712, 3714 F
• All admissible as declaration against interest.
G G
H B. AGAINST D2 H
I
Messages extracted from Lee’s iphone I
3. As against D2, all those messages listed by the prosecution
J J
in the written submission dated 4 March 2019 under headings (1) (2) (3)
K
(4) and (5) are not admissible against D2 as D2’s position was no K
L
different from other members of the same WhatsApp chat Group who are L
not charged with any offence. However, D2’s position changed when he
M M
indicated his participation to the joint enterprise at message no. 3759.
N N
(6) Messages no. 3754, 3755, 3757, [3759]
O • D2’s message at 3759 is admissible against him as O
declaration against interest, when read together with
P P
the other messages under this heading, in particular,
bearing in mind the reference to @Benard and @Mou
Q Q
Chai between message nos. 3755 and 3757.
R R
(7) Messages nos. 3789-3791
S • All admissible under co-conspirator’s rule. S
(8) Messages nos. 3951, 3952, 3956, 3957, 3959, 3960
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 6 - A
B • All admissible under co-conspirator’s rule. B
(9) Messages nos. 4006-4008, 4010-4014
C C
• All admissible under co-conspirator’s rule.
D D
(10) Messages nos. 4015-4016
E • All admissible under co-conspirator’s rule. E
F
(11) Messages nos. 4148, 4156 F
• All admissible under co-conspirator’s rule.
G G
(12) Messages nos. 4185, 4186, 4189, 4191, 4192
H H
• All admissible under co-conspirator’s rule.
I (13) Messages nos. 4195 – 4197 I
• All admissible under co-conspirator’s rule.
J J
(14) Messages nos. 4198-4201, 4203
K K
• All admissible under the co-conspirator’s rule.
L Further, note that at 4203 D2, in response to D1’s L
description of what was happening to Bosco, at
M M
23:06:16, said “KT now” which the jury can infer to
N
mean D2 was at Kwun Tong at 23:06:16, which is an N
admission by D2 and another piece of independent
O evidence as to D2’s participation in the joint O
enterprise.
P P
Q Q
R R
S S
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 7 - A
B (15) Message no. 4205 B
• This is an audio message from D1: hey Benard, if on
C C
the hill you see anyone hiking, jogging and such, you
D report over here. This is admissible against D2 as D
D1 was instructing D2 to act in pursuance of the joint
E E
enterprise.
F (16) Messages no. 4206 F
• Admissible under co-conspirator’s rule.
G G
(17) Messages nos. 4210-4214
H H
• Admissible under co-conspirator’s rule, in particular
I when D2 messaged “Ok” and “k” indicating his I
acknowledgment of what had been said by D1 and
J J
Wong Long Ki (WLK).
K (18) Message no. 4215 K
• This is an audio message from D1 to WLK: Meow,
L L
wait a bit longer we are still packing stuff, cleaning
M stuff. The contents of this message indicated that the M
joint enterprise had completed and they were tidying
N N
up. The co-conspirator’s rule is no longer applicable
O so this is not admissible. O
P Messages between D2 and D3 extracted from D3’s phone P
Q Q
(1) Messages nos. 49, 52
R • All admissible against D2 as declaration against R
interest, in particular with reference to his assertion
S S
that he would take part in the joint enterprise (at
T
message no. 3759 on Lee’s phone). T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 8 - A
B (2) Message no. 62 B
• Admissible against D2 as declaration against interest,
C C
in particular with reference to his assertion that he
D would take part in the joint enterprise (at message no. D
3759 on Lee’s phone).
E E
4. As to the messages extracted from the WhatsApp Group
F F
from D3’s phone between March and April 2017 (ie before Lee became a
G member of the Group in May 2017, so not shown on Lee’s phone) listed G
H
by the prosecution under headings (1) (2) and (3), I rule these H
inadmissible against D2.
I I
5. Even though D2 responded by messaging “yay” at 654 after
J J
D1 messaged “so we can fuck him whatever we like in night game”, such
K K
an expression is not clear enough to bring these messages under any
L
exception to the hearsay rule, nor can they be used for non-hearsay L
purpose against D2, as I have already ruled that prior to D2 indicating his
M M
willingness to participate in the joint enterprise, D2’s position was the
N same as other members of the Group and the co-conspirator’s rule does N
not apply.
O O
P C. AGAINST D3 P
Q
6. I will again use the tables prepared by the prosecution in Q
their written submission dated 4 March 2019. As far as D3 is
R R
concerned, the prosecution only needs to rely on the WhatsApp messages
S extracted from D3’s own phone, whether such messages were in the S
Group or not.
T T
U U
V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 9 - A
7. Save for the messages nos. 8679 - 8685 (which correspond
B B
with messages nos. 1369-1375 on Lee’s phone which I already ruled
C C
inadmissible) I rule all the messages listed by the prosecution admissible
D
against D3 for non-hearsay use. D
E Severance of trial of D1 and D2 from D3 E
F 8. History of this case showed that this Court was reluctant, at F
first, to sever the trial of D1 and D2 from D3. However, this case has
G G
evolved dramatically, and totally unexpectedly, from the time this Court
H made the earlier ruling. Then, there was no issue in relation to the H
WhatsApp messages. The only issue was in relation to the
I I
Video-recorded Interviews admissible against D3, which required careful
J J
redaction so as not to be prejudicial to D1 and D2.
K K
9. Now, with my ruling on the WhatsApp messages, it is clear
L L
that the amount or quantity of WhatsApp messages the prosecution can
M
adduce against D3 is more than those the prosecution can adduce against M
D1 and / or D2, with the added complication that the jury will be asked to
N N
consider the truth of some of the messages in relation to D1 and D2, but
O not in the case of D3. This issue in relation to the WhatsApp messages, O
together with the additional problem the prosecution will have to face
P P
regarding redaction (which may put D3 in a disadvantageous position, if
Q redaction is done), convinced me that the most proper and fairest way Q
forward is to sever the trial of D1 and D2 from D3.
R R
S 10. I therefore ordered that the trial of D1 and D2 be severed S
from the trial of D3.
T T
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V V
Subject to reporting restrictions as per paragraph 11 of this Ruling
A - 10 - A
11. Having regard to the need to avoid a substantial risk of
B B
prejudice to the administration of justice in the present on-going trial, it is
C C
ordered that the publication (in any form) of any report of the proceeding
D
concerning the admissibility of the WhatsApp messages and the reason D
for severance of the trial of D1 and D2 from D3 be prohibited until the
E E
conclusion of this trial or until further order.
F F
G G
H H
(Judianna Barnes)
Judge of the Court of First Instance
I I
High Court
J J
K Mr Wei, Mark HT, leading Mr Tso, Yat Long, Counsel-on-fiat, assigned K
by of Department of Justice, for HKSAR
L L
Mr Grounds, Christopher, leading Mr Lo, Paulinus, Counsel instructed by
M
Messrs Francis Kong & Co, Solicitors, assigned by the Director of M
Legal Aid for the 1st defendant
N N
Mr McNamara, John Patrick, Counsel instructed by Messrs SH Chan &
Co, Solicitors, assigned by the Director of Legal Aid for
O the 2nd defendant O
P Mr Chan, Siu-ming, leading Mr Lam Ka-yau, Michael, Counsel P
instructed by Messrs Stephen Lo & PY Tse, Solicitors, assigned by
Q the Director of Legal Aid for the 3rd defendant Q
R R
S S
T T
U U
V V