R v Al Batat & Ors (No 8)

The accused, Mr Ying Cheng Luo, sometimes referred to as “Johnny”, raises an objection to certain evidence relied upon by the Prosecution as an admission by him. Mr Luo, along with five others, is charged with a series of offences arising out of two, or perhaps three, shooting incidents that occurred in January and February of 2017. The background is set out in other judgments, but in short, the matter involves the failure by the target of the shootings, Mr Jun Jia, to pay a drug debt to a man known as James Chen, and perhaps someone known as Jackie Chau or CC. It is alleged by the Prosecution that James took out a contract on Jun Jia's life and that Mr Luo accepted that contract and set about attempting to execute the contract by recruiting a number of others to assist him. This resulted in a failed attempt to shoot Mr Jia in the streets of Bexley North, and a second failed attempt to do the same at a premises in Guildford, which was set up as some sort of makeshift Buddhist temple according to the evidence.

There is a vast amount of evidence, and some of it I have read in the course of a number of pre-trial applications. The evidence to which objection is currently taken is in the statement of a witness called Wai Li. Ms Li was an associate of a number of the accused men, but in particular Mr Luo.

This statement forms part of the three volumes of material tendered by the Prosecution on the voir dire. It is a statement dated 1 May 2019: see Exhibit A, Volume 1, Tab 9. From about paragraph [96], Ms Li describes the events and interactions she had on the day before and the day of the shooting with another potential witness called Ada Chan. We heard from Ms Chan earlier on the voir dire, but her evidence is not important in the present context.

Ms Li describes communication she had on what is, on my reading of it, unquestionably the day after the alleged shooting on 1 February 2017. She discusses her communications with Ada and her baby-sitter's son, Daniel, who was asking her if she knew anything about an incident the night before during which somebody had died. After she spoke with the baby-sitter's son, she says in paragraph [99]:

It is accepted that "Johnny" is a reference to Mr Luo; "Dayu" is a reference to Mr Liu; and "Xiao Jun" is another name for Jun Jia.

Ms Li said she used her Apple iPhone to have the conversation on WeChat and that the phone was the same one taken by police when she was arrested. She acknowledges that she "might have deleted these messages but I'm not entirely sure". As I understand it, the messages themselves are not available, if, indeed, they exist or ever existed, but the evidence will be adduced by the Prosecution out of the words or mouth of Wai Li.

The objection is essentially a hearsay objection. In short, Mr Luo submits that it cannot be established that the critical statement, that is "Dayu he’s sick, he took out the gun and shot within minutes… He was going to kill Xiao Jun but he killed the deceased", was information that Mr Luo, assuming he said anything like this, came by through second or third-hand sources. The accused notes that there appeared to be an unknown delay between the messages. It may be that in the time between the shooting incident and this WeChat exchange, or even during the currency of the WeChat exchange, that Mr Luo obtained information from others, so that the material or statements that he made could be second, third or fourth-hand hearsay. If that were the case, it is submitted (correctly) that this evidence would not be admissible in Mr Luo’s trial.

In response to the objection, the Prosecution submits that the concern about whether the information comes second-hand, is readily met by reference to admissions that have been made by Mr Luo in a Notice to Admit Facts filed in the course of some case management interactions before the trial came to the stage of pre-trial in late July of this year.

The Notice to Admit Facts included admissions as to where the various accused were and whether they admitted to being where the Prosecution says they were at relevant times. As I have said, the shooting took place in Guildford. In fact, it took place at 5 Kennedy Street in Guildford. The Notice to Admit Facts (relevantly) says this, "The accused admits that he was at the following locations on the nominated dates". There is then a series of Roman numerals. At (xii) the Notice reads:

There are admissions by other accused as to their presence at that scene, including Mr Liu, but I will put that aside for the time being. What is clear is that the shooting took place at those premises and that Mr Luo's case is that he was present at those premises.

Section 81 of the Evidence Act provides an exception to the hearsay rule. That section is in the following terms:

Section 88 of the Evidence Act then provides:

I am satisfied, based on the admissions made in the Notice to Admit Facts and on what I understand to be other evidence putting Mr Luo at the scene, that the evidence of Ms Li is capable of amounting to an admission. I am satisfied that this amounts to an admission at least as to Mr Luo's state of knowledge, but, more particularly, an admission as to:

In those circumstances, the evidence is relevant (there was no suggestion otherwise) and also falls within the exception to the hearsay rule as an admission, as contemplated by s 81 of the Evidence Act.

No particular submissions were directed to the question of discretionary or mandatory exclusion pursuant to s 135 or s 137 of the Evidence Act, although it was submitted that the dangers of the evidence could not be cured by direction. I am unable to accept that submission. The evidence, if I am asked, will be subject to firm directions and warnings under s 165 as to admissions and/or hearsay. There is no basis that I can see to invoke the operation of either s 135 or s 137 to result in the exclusion of the evidence.

For those reasons, I rule that the evidence in paragraph [99] of Wai Li’s statement dated 1 May 2019 is admissible in Mr Luo's case.

I note that there is an outstanding objection on behalf of Mr Liu in relation to the same evidence which is yet to be determined.