HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

Part IIIB permits evidence from overseas witnesses only by live television link as enacted; the court cannot permit that evidence to be video recorded and then played to the jury as a substitute for live testimony because there is no statutory authority to convert live link testimony into an out-of-court recorded testimonial presentation; recording is permitted only for preservation of the court record and the court cannot use s79I conditions, rule-making (s79L), or inherent jurisdiction to expand the statutorily prescribed mode of reception of evidence.

Citation
[2021] HKCFI 304
Parties
Prosecution: HKSAR; 1st Accused: Chen Keen (alias Jack Chen); 2nd Accused: Hao May (formerly known as Wang May Yan; alias May Wang); 3rd Accused: Yee Wenjie (also known as Yu Wenjie; alias Eric Yee)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 February 2021
Case Number
HCCC309/2019
Procedural Posture
Criminal — Application Under Part IIIB (live Television Link) / Pre Trial/ruling on Admissibility and Conditions for Overseas Witnesses
Outcome
Application to video record overseas witnesses for playing to the jury refused; permission granted to take evidence by live television link and to record the live link for preservation only; procedural directions issued
Legal Topics
Live Television Link, Video Recorded Testimony, Part IIIB Criminal Procedure Ordinance, Inherent Jurisdiction, Hearsay, Rule Making Powers
Source Language
EN
Criminal Law Evidence Procedure International Evidence Live Television Link Video Recorded Testimony Part IIIB Criminal Procedure Ordinance Inherent Jurisdiction +2 more

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Parties

HKSAR

Prosecution

Chen Keen (alias Jack Chen)

1st Accused

Hao May (formerly known as Wang May Yan; alias May Wang)

2nd Accused

Yee Wenjie (also known as Yu Wenjie; alias Eric Yee)

3rd Accused

Procedural Posture

Criminal — Application Under Part IIIB (live Television Link) / Pre Trial/ruling on Admissibility and Conditions for Overseas Witnesses

Legal Issues

  1. 1 Whether testimony given under Part IIIB by live television link may be video recorded and that recording played to the jury as the witness's evidence
  2. 2 Whether the Court may impose conditions under section 79I to permit recording that expands the statutory mode of presentation
  3. 3 Whether the Chief Judge may amend rules under section 79L to permit recorded testimony in place of live link

Ratio Decidendi

Part IIIB permits evidence from overseas witnesses only by live television link as enacted; the court cannot permit that evidence to be video recorded and then played to the jury as a substitute for live testimony because there is no statutory authority to convert live link testimony into an out-of-court recorded testimonial presentation; recording is permitted only for preservation of the court record and the court cannot use s79I conditions, rule-making (s79L), or inherent jurisdiction to expand the statutorily prescribed mode of reception of evidence.

Court Disposition

Application to video record overseas witnesses for playing to the jury refused; permission granted to take evidence by live television link and to record the live link for preservation only; procedural directions issued

Orders

  • Extension of time under Live Television Link Rules granted to allow Part IIIB applications out of time where sought
  • Permission granted for nominated overseas witnesses to give evidence by live television link pursuant to Part IIIB