HKSAR v. HUI KA LOK, SAM

HKSAR v. HUI KA LOK, SAM

Where independent evidence establishes a joint enterprise and a participant's involvement, the acts and declarations of co-participants made in furtherance of that enterprise (including communications necessary to advance the common purpose) are admissible and may be referred to in Opening and proved at trial; by contrast, hearsay statements that do not fall within that exception (notably certain narrative statements or those concerning Li Ka-kuen here) may not be relied upon in Opening until admissibility is established.

Citation
[2021] HKCFI 3173
Parties
Prosecution: HKSAR; Defendant: Defendant (Sam); Co Defendant and Witness (pw1): OCHOA VILLEGAS Luis Carlos; Co Defendant: Li Ka-kuen
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 October 2021
Case Number
HCCC148/2020
Procedural Posture
Criminal / Pre Trial Admissibility Hearing (preliminary Issue)
Outcome
Application allowed in part and refused in part
Legal Topics
Hearsay, Joint Enterprise, Res Gestae, Admissibility of Evidence, Opening Speech
Source Language
EN
Criminal Law Evidence Law Procedural Law Hearsay Joint Enterprise Res Gestae Admissibility of Evidence Opening Speech

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Parties

HKSAR

Prosecution

Defendant (Sam)

Defendant

OCHOA VILLEGAS Luis Carlos

Co Defendant and Witness (pw1)

Li Ka-kuen

Co Defendant

Procedural Posture

Criminal / Pre Trial Admissibility Hearing (preliminary Issue)

Legal Issues

  1. 1 Whether statements made by co-defendant PW1 and third parties are admissible as acts and declarations in furtherance of a joint enterprise despite being hearsay
  2. 2 Whether narrative or historical statements can be admitted under the common enterprise exception or res gestae
  3. 3 Whether the prosecution may refer to disputed hearsay in Opening or must prove admissibility at trial

Ratio Decidendi

Where independent evidence establishes a joint enterprise and a participant's involvement, the acts and declarations of co-participants made in furtherance of that enterprise (including communications necessary to advance the common purpose) are admissible and may be referred to in Opening and proved at trial; by contrast, hearsay statements that do not fall within that exception (notably certain narrative statements or those concerning Li Ka-kuen here) may not be relied upon in Opening until admissibility is established.

Court Disposition

Application allowed in part and refused in part

Orders

  • Prosecution may refer in Opening to and adduce at trial those statements and acts by PW1/Mono that fall within the acts or declarations in furtherance of the common enterprise exception, subject to normal proof
  • Prosecution shall not refer to or rely upon evidence relating to Li Ka-kuen in Opening unless and until admissibility is established during the trial; if admissibility is later established it may be raised again at the appropriate time