HKSAR v. Sun Yuk Ling

HCCC 228/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 228 OF 2015

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D E C I S I O N

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1.The defendant was arrested by Customs & Excise at the Lok Ma Chau Spur Line Control Point (“Lok Ma Chau”) on 26 November 2014, after attempting to import 3,482 grammes of Ketamine in a rucksack from China. She was later taken from Lok Ma Chau to the North Point Customs & Excise Headquarters (“North Point”) for investigation and questioning by the Special Crimes Investigation Bureau (“SCIB”) Team F.

2.By her Grounds of Objection, the defendant seeks to object to the admissibility of her video recorded interview (“VRI”), which took place between 12:15 to 12:41 hours on 27 November 2014, at North Point.  She was unrepresented at the time.

3.The defendant complains that the admissions against interest which she made during that interview were made as a result of threats, inducements and oppression.  Those admissions follow earlier admissions which may or may not have been made under caution and which are not relied upon by the prosecution but are relevant to this application.

THREATS

4.The threats were allegedly made by CO 97195 and CO 98315 (both female officers) on 26 November 2014, whilst the defendant was detained in Lok Ma Chau prior to being taken to North Point for questioning.  COs 97195 and 98135 were part of Team F.  The defendant was detained within Room L2‑152 at Lok Ma Chau.  CO 97195 was the guarding officer. CO 98135 was to be the interviewing officer.  In examination in chief, CO 97195 said that nothing had happened within L2‑152 other than a body search which had been witnessed by another officer and CO 98135 had come into the room for 5‑10 minutes to confirm the defendant’s personal particulars.  She had asked one or two other questions about her family circumstances.  CO 97195 had made a note of this conversation but had since destroyed it.  She had not recorded the entry of CO 98135 in the guard form Exh VDP3, nor the fact that CO 98135 had made enquiries of the defendant at that stage as she considered this normal administrative procedure by a member of the team and not worthy of note.  CO 98135 confirmed she had made enquiries about the defendant for the purpose of confirming her personal particulars whilst she was detained in Room L2‑152 but she maintained that she did not speak to the defendant and she denied under cross examination that she had done so.

5.The alleged threats amounted to three statements which the defendant says she thought to be a threat of assault because they were said in a fierce and threatening manner.  These were:

“Are you now playing with me? When we get back to North Point, I will play with you slowly”

allegedly said by CO 97195.

“You had better cooperate with us!”

allegedly said by CO 98135, and

“If you don’t cooperate with us, we will take action”

allegedly said by CO 97195.

6.Having heard both officers give evidence, I fully accept that these statements were in fact made to the defendant.  There was much about the officers’ evidence which did not ring true.  In particular, I was concerned that no record had been made.  Under cross examination CO 97195 said surprisingly that she could not see any difference between a member of the team fetching documents for processing and questioning.  I was also somewhat dismayed by the fact that the note which was made by CO 97195 of the conversation between CO 98135 and the defendant when she was clearly questioning her, was later destroyed contrary to all proper practice.

7.Whether or not CO 98135 had spoken with the defendant at this time, none of these statements on their own, given the time, place and background circumstance of their making, amounts to sufficient cause to suggest a lack of voluntariness on the part of the defendant at her interview the next day.  There is insufficient nexus.  They may however, if accepted, go to the issue of credibility and they may set the background against which the defendant’s later behaviour may be assessed.  

INDUCEMENT AND OPPRESSION

8.The defendant was taken from Lok Ma Chau to her home address for a house search and then on to North Point.  She arrived at North Point at 22:47 and was taken to Interview Room 7 (“IR7”) on the detention floor which Exh VDP2 shows as having some 16 interview rooms, 6 video recorded interview rooms and 20 cells.

9.There is no evidence that she was processed by the Duty Officer, CCO Chow Chin Pang, at this point or at any point thereafter.  It appears that it was C&E practice for the investigation team to complete the CHB Detention Form Exh VDP16 although on the face of the document it is required to be completed by the Duty Officer.  This had not been done, he said, because it might hinder the investigation.  In fact, a blank form was given to the investigation team to complete without limit of time and CCO Chow said that no part of the form was completed by him.  He did not know who had completed the form.  Whilst CCO Chow accepted that it was his responsibility as Duty Officer to protect the interests of the detainee, his evidence was to the effect that the system in place at the time did not allow him to do so.  He felt he had no duty to check upon the detainee in IR7 until 24 hours had passed.  As a consequence the defendant was kept overnight in IR7 and not in a cell.  It appears that no one was protecting her interests.

10.The defendant complains that she was kept in IR7 overnight without the benefit of a mattress, blanket or pillow until her VRI at midday on 27 November 2014.  CO 97195 said that she had been told by Senior Inspector Lui to keep her in IR7 and not to put her in a cell.  He denied this.  Variously, she said that it was stipulated in the rules that females would not be kept in the cells on the 9/F; there were no female cells; and then there were female cells but there was a male officer on duty and that it was not appropriate to put her in a cell.  She certainly saw no issue at all in having a young female detainee sleep on the floor that night.  Neither did CO 98135. She gave evidence that she was told there were no suitable female cells available to them at that time.  This is clearly not true as the Duty Officer provided Exh VDP 14 which shows there was only one cell in use that night out of 20 and he had been unaware of any request for a cell.  CO 98135 said that it was their practice to keep female detainees in interview rooms overnight.  Senior Inspector Lui on the other hand said that he had given instructions that the defendant should rest and that he had not expected her to be interviewed.  As a consequence he had expected her to be detained in a cell and not in an interview room.  CCO Chow said that he would have expected the detainee to be allowed to rest in a cell overnight.

11.According to CO 97195, the defendant had been given a blanket at some stage.  The defendant complains that this was not the case and she was provided with nothing.  There is no record of any such thing happening according to the guard form Exh VDP3 completed by CO 97195.

12.According to the evidence in chief of CO 97195, the defendant was brought to IR7 and searched in the presence of CO 98135.  The defendant then asked to go to the toilet and after that CO 97195 issued a Notice to Persons in Custody.  The defendant was asked if she wanted anything to eat which she declined and then CO 98135 left and the defendant slept.  According to Exh VDP3 this happened between 22:52 and 23:15, a period of just 23 minutes.  If what the defendant says is correct, there would have been no time for any questioning at this stage.  If questioning took place, once again the guard form does not reflect the reality on the ground.  The next note in the guard form is at 02:10 on 27 November 2014 when the defendant asked once more to go to the toilet.

13.The defendant complains that further enquiries were made of her during that time including particulars of her family.  CO 97195 seems to accept this but any note she made of those enquiries has since been destroyed.  She did not record it in the guard form.  CO 98135 denies this took place.

14.The defendant further complains that she was questioned by CO 98135 later that night without caution, at which time she had told CO 98135 that she had been asked to carry “the stuff” by someone called Ah Hoi whom she had met on Facebook.  During this interrogation, CO 98135 had made notes and then had left the room leaving her with CO 97195.  Some moments later, CO 97195 had received a telephone call as a result of which she had asked the defendant for the password to her mobile.  She had told CO 91795 the password and it had been passed on to the caller.  Later CO 98135 had returned and continued to ask further questions without caution.  There is also some dispute at this stage as to whether the mobile phone Exh VDP9 was still in the personal property of the defendant at this stage and therefore with her in IR7 or whether it had been seized as an exhibit.  I will return to this later.

15.During this interrogation session the defendant accepts that she answered those questions in a similar fashion to the content of her answer at Counter (“CTR”) 83 of the VRI but that she had said that Ah Hoi had told her that it was not drugs.  In response to this CO 97195 had told her to say in interview that he had said he did not know.  CO 97195 had also coached her to say that she had been playing truant from school that day.  Further questions were asked about Facebook and about what happened on the Mainland which she answered in a similar vein to CTRs 97, 103, and 105 of the VRI.  Thereafter the defendant maintains that CO 97195 told her to say that she would be paid and to make up a figure for payment.

16.The defendant spent the remainder of the night on the floor of IR7 from approximately 23:15 (if the guard form VDP3 is to be believed) til 09:30 hours when she was given breakfast save for the toilet break already referred to at around 02:00a.m.  The timing of this record is clearly incorrect because the post record made by CO 98135 at Exh VDP4 shows that she was asking questions of the defendant at 00:30 hours.  There is no record of the questioning by CO 98135 within the guard form Exh VDP3 or within the CHB Detention Form Exh VDP16.  Despite there being no such record, CO 97195 maintained that the defendant had volunteered to speak to CO 98135 and that is why she had been called to IR7 at 00:30 hours.  CO 98135 told the court that she had made a contemporaneous note of the conversation which took place at 0030 hrs but that she too had since destroyed it after using it to make the post record.

17.At approximately 10.00 am on 27 November 2014, CO 98135, in the presence of CO 97195, asked further questions.  The defendant says this was not done under caution.  It was at this point that the post recorded statement VDP4 was made of the interrogation the previous night.  The post record indicates that the defendant had mentioned Ah Hoi and that she had contacted him on Facebook.  At that point efforts were made to access the defendant’s mobile phone to open her Facebook account and find Ah Hoi.  The defendant said, as mentioned above, that this was done by CO 98135 leaving the room and telephoning later for the password to her phone.  In the post record, CO 98135 says that this was not the case as the phone was in her personal property in front of her in the room.  The difficulty the officers have with that account is that Exh VDP 8 shows two mobile phones in her personal property at the time of arrest.  In all, 13 items were recorded in Exh VDP3.  CO 97195 says that she took possession of these 13 items and checked them in front of the defendant whilst in L2‑152 which would have been in the presence of CO 13107 a uniformed guarding officer.  She took over the items in a transparent plastic bag but she did not sign for them.  Exh VDP3, completed by CO 97195 later that evening shows only three items in her personal property, none of which are the mobile phones.  Exh VDP3 therefore suggests that the defendant had only those three items in front of her in IR7.

18.On further investigation the chain of evidence for the mobile phone in question is totally unreliable.  VDPW7 CO 13107 Lung Pik‑yan was the original guarding officer at Lok Ma Chau.  She completed Exh VDP8.  The defendant’s personal property was listed at Part 3 and they were signed for by the defendant at 1650 hrs under Part 6 in the presence of SCO 9370. They remained on a table in front of the defendant and in the sight of CO 13107 until they were taken over by CO 97195 at 1943 hrs.  CO 97195 says that she checked these items with the defendant at that time but no separate record was made of that handover.  CO 13107 gave evidence that she handed over all 13 items to CO 97195 within the furry bag itemized as item 2 on VDP8 Pt 3 and not inside a transparent bag.  I note that they were not signed for on a separate Handing Over/Taking Over certificate similar to Exh VDP11 as no one suggests that they had been made exhibits at that point even though Senior Inspector Lui said that he would have expected them to be seized as exhibits because mobile phones are usually seized and sent off for forensic examination.  At 19:43 hours CO 97195 has not yet completed Exh VDP3, which is the guard form for which she is responsible.  This is not filled out until 22:50 hours that evening.  There is therefore a period of some 3 hours when the items are unaccounted for on any document and were reduced from 13 to 3.

19.The Exhibits Officer CO 06156 took over the back pack and the drugs at Lok Ma Chau but not any of the personal items.  He accepts that the mobile phones were on his exhibits list as per his witness statement for trial but he has no computer or documentary record of how they came to be so.  According to CO 06156 he had been told to seize the mobile phone as a result of new findings in relation to the case by CO 98135.  It had been given to him by CO 98135 in the early hours of the morning.  None of the sealed Tamper Proof Evidence Envelopes (“TPEEs”) had the time of sealing completed in the bottom right hand corner.  None of his handwriting was on the TPEE relating to the relevant mobile phone Exh VDP9.  The TPEE for VDP9 which is identified at Exh VDP9a has an alteration to the date under “Date and Time Seized” such that it is impossible to know whether it was seized on 26 November or 27 November. It also has alterations in the row for “Where Seized” with “CHB 9/F” written on it and then crossed out and initialed and Lok Ma Chau Spur Line Control Point written in.  CO 06156 said he initialed that alteration even though he had not done it himself nor was he present but that it seemed reasonable because the date and time of seizure usually refers to the timing and place of offence.  That, he said, was his practice.  According to the evidence of CO 06156, having read the TPEE VDP9a, he believes the phone was seized at 16:05 hours at Lok Ma Chau as an exhibit which would be contrary to the evidence of CO 97195 and CO 98135 who say it was in her personal property and on the table in IR7 in a transparent plastic bag.  It is also contrary to his own evidence that he received the phones in the early hours of the morning from CO 98135.  Why would CHB 9/F have been entered if the item had in fact been seized at Lok Ma Chau as an exhibit?  And if it had been seized as an exhibit, then surely it would have been the subject of some record at that time.  CO 06156’s wholly unacceptable answer for this atrocious exhibit handling is that the time was to be placed on the TPEE at the time of sealing after interview.  I can think of no situation in which that form of exhibit handling is acceptable.  That would have covered a period of some 20 hours without an exhibit being protected against tampering.  Even if it had not been seized as an exhibit at the outset, someone should have recorded when the telephone became an exhibit and it should have been placed in a TPEE properly documented and sealed at the time of seizure.  If that TPEE needed to be opened, a new TPEE should be completed and the old TPEE placed inside the new one.  There were a series of old TPEEs inside Exh VDP9 which were identified as VDP a‑d but the first in time, which was VDP9a, was clearly not the beginning of the story so far as Exh VDP9 is concerned.

20.Perhaps of more significance to the ultimate trial of this matter, under cross examination, CO 06156 said that there had been two exercises where he had sealed exhibits in front of the defendant.  Only some of the exhibits had been sealed after the interview and that exercise had been recorded in the guard form.  He could not now say which items were sealed at that time although he believed the mobile phones were included in that group.  The remainder of the exhibits, including the drugs, were sealed after the defendant had breakfast.  There is no record in the guard form of this happening and no supporting documentation to indicate that happened in the presence of the defendant because once again his notes were shredded by him after he had used them to make his witness statement.  There is no record of these two exercises in his witness statement.  In fact, the witness statement at paragraph 10 suggests all of the exhibits were sealed at 22:45 on 26 November 2014 whilst on 26/F of North Point.  We have yet to see the TPEEs which contain the drugs but I would anticipate that they too will have no time of sealing and no signature of the defendant to show that had taken place.  If they do, why were they properly completed and the remainder of the exhibits not properly completed.  If not, how do the C&E prove provenance of the drugs and bags?

21.As a consequence, I do not believe either CO 97195, CO 98135 or CO 06156 as to their evidence in respect of VDP9.  It is clear to me that it had been taken out of the defendant’s personal property before VDP3 was filled out but without any record of its location and was eventually dealt with at some time after 00:30 hours on 27 November 2014 as a result of the inappropriate questioning of the defendant in the small hours of the morning.  At that point in time it was given to CO 06156 to put into a TPEE with CHB 9/F written on it by someone and that was later altered.  We know not when or why.  I also note that the handwriting on the TPEE VDP9a was not that of CO 06156 yet he gave evidence that this item was given to him specifically, in the early hours of the morning, in order to make it an exhibit.  This was some two hours after he had returned to North Point to deal with a handful of drugs exhibits which would not have taken an overly lengthy amount of time to process.  Why then did he not complete this exercise himself as the appointed exhibits officer?

22.Exhs VDP3 and VDP14 should have been completed as part of the initial processing procedures at North Point if there had been a proper system in place.  If that had been done then the Duty Officer would have checked her personal property and kept it in some safe place until required.  He did not do so.  As a consequence there is no record to support the contentions of these officers.  Indeed the opposite appears to be the case.

INDUCEMENTS

23.The defendant alleges that she asked if she could not take part in the VRI with the following response:

“Are you sure you don’t want to? You should think carefully first. If you take part in the VRI, whether the judge accepts it is another matter, it will definitely be to your advantage. You should consider your own interest first”

24.So far as I can tell that phrase is the top and bottom of any suggested inducement.  The defendant went on to sign the interviewee’s consent form at AE103 Exh VDP5.  Again, on its own and without more, this statement may not be sufficient to indicate that the admissions in interview were made involuntarily but taken together with the other matters raised before me, I accept that if said, they would have been likely to persuade the defendant to go along with an interview which, in the cold light of day after a good night’s sleep, she may not have done.

MISCELLANEOUS

25.Lastly, the defendant complains that whilst still un‑cautioned, CO 98135 rehearsed the questions she intended to ask in the interview and gave the opportunity for the defendant to rehearse her answers before the interview took place.  She also reminded her of what she should remember to say as a result of her previous question and answer sessions.  I have had an opportunity to watch some of the VRI in which the defendant.  She is clearly subdued and, as Mr Boey submitted, seems to be able to answer questions without thinking almost by rote.  It is highly likely that this alleged exercise took place although it is denied by CO 98135 and CO 97195.

THE LAW

Confession Evidence & Admissions Against Interest

26.Where an accused challenges the admissibility of a confession, as is the case here, the court is required to hold a voire dire to satisfy itself that the confession was made voluntarily.  If not so satisfied, the confession is inadmissible.

27.For it to be admissible, the prosecution must establish that the VRI was a voluntary statement in the sense that it was not obtained from the accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression.

28.In Ibrahim v Rex [1914] AC 599 PC at 609, Lord Sumner following Cave J in Reg v Thompson [1893] 2 QB 12 , said:

“It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage excited or held out by a person in authority[1].”

This well known dictum was followed by Lord Hailsham in DPP v Ping Lin [1976] AC 574 at 600E when he added “or by oppression” to the end of that list.

29.Oppression in the context of the criminal law has been described as something which tends to sap or has sapped the free will of the defendant.  That free will must exist before a confession or admission against interest can be said to be made voluntarily.  Whether or not there is oppression depends upon the circumstances prevailing at the time.  They may include inter alia the length of time someone is questioned, the time in between the periods of questioning, whether the accused has been given proper refreshment, whether the accused has been afforded ample opportunity for rest and the nature and characteristics of the defendant for what may be oppressive to one person may not be oppressive to another.  At common law a confession or admission against interest, if obtained by oppression, is involuntary and therefore inadmissible in evidence against the accused: Callis v Gunn [1964] 1 QB 495; Prager [1972] 1 All ER 1114.

30.Lord Hailsham was at pains to set out the background against which this long established rule had come about and although we have moved on considerably in the 21^st Century, the principles enunciated still appear to be apposite having seen and heard what has happened in this case.  He said:

“It bears, it is true, all the marks of its origin at a time when the savage code of the eighteenth century was in full force. At that time almost every serious crime was punishable by death or transportation. The law enforcement officers formed no disciplined police force and were not subject to effective control by central government, watch committees or an inspectorate. There was no legal aid. There was no system of appeal. To crown it all the accused was unable to give evidence on his own behalf and was therefore largely at the mercy of any evidence, either perjured or oppressively obtained, that might be brought against him. The judiciary were therefore compelled to devise artificial rules designed to protect him against dangers now avoided by other and more rational means.”

31.The underlying rationale then and now, is based upon the need to ensure the underlying reliability of confession evidence as well as the protection of a detainee’s right to silence.  In Secretary for Justice v Lam Tat Ming & Anor, FACC 9/1999, Li C.J. referred to the maxim nemo debet prodere se ipsum (no one can be required to be his own betrayer) and what is commonly called his right to silence.  That right of silence is protected in Hong Kong by the Rules and Directions for the questioning of suspects and taking of statements 1992, which replaced the English Judge’s Rules.  These require an officer inter alia to caution a suspect before putting any questions to him and are premised upon the detainees’ basic right of silence.

32.Questioning, which by its nature, duration and other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have remained silent will render the resultant answers inadmissible: R v Prager [1972] 1 All ER 1114 at 1119; R v Mushtaq [2005] 1 WLR 1513.

The Test

33.According to Lord Hailsham in DPP v Ping Lin supra, the test to be applied is one of fact.  A trial judge should apply the test enunciated by Lord Sumner in a common sense way to all the facts in context and ask himself:

“Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority ..or by oppression.”

34.In The Queen v Lam Yip-ying [1984] HKLR 419, Roberts C.J. said that a trial judge should ask himself the following questions at the end of a voire dire:-

“(a)  Has the Crown established beyond reasonable doubt that the statement is voluntary in the sense that it was not obtained by threats, promises, oppression or deception; and

(b)  If he is so satisfied, and the evidence suggests that it was obtained unfairly or that its use in evidence would be unfair, should he exercise his discretion to exclude it[2]?”

C & E PRACTICE AND PROCEDURE

35.The real complaint of the defendant lies within paragraphs 10 & 11 of the Grounds of Objection.  Despite her age and despite the fact that she was on the detention floor of the HQ with some 20 cells available, the defendant was left to spend the night in IR7 being guarded by CO 97195. She says she was not given a pillow, blanket and mattress and slept on the floor.  CO 97195 agreed she slept on the floor but said she had been given a blanket and slept soundly.  Even if she did sleep soundly, which I do not believe given that I can see that she was taken to the toilet in the middle of the night and given food at some stage, it is wholly unacceptable that anyone, let alone a 17‑year‑old girl should be left to sleep on the floor of an interview room.  All the more unacceptable when there were cells close by.  What gives me more cause for concern is that CO 97195 did not think anything was amiss when her superior officer, or so she says, told her not to put the defendant in a cell but to guard her all night in IR7.  It sounds as if this is a regular approach to female detainees. If it is, it must stop.  It is clearly oppressive and any resultant interview must be involuntary.

36.Having heard the evidence in this case I feel further comment is required.  The defendant should not have been questioned as she was at 00:30 hours on 27 November 2014.  By that stage she had been detained since 16:00 on 26 November 2014 and had not received either food or drink. She was vulnerable and unrepresented in a strange place surrounded by people in authority.  This would have been very intimidating for a 17‑year‑old schoolgirl.  Any answers she gave to questioning by CO 98135 whilst in detention at North Point and the subsequent post record are also inadmissible.

37.I find that the exhibits were handled in a most unprofessional manner.  The provenance of the mobile phones is seriously undermined.  Subject to Counsel wishing to address the court on this issue, I find that they too are inadmissible against the defendant.

38.I have indicated that I have serious doubts about the veracity of CO 97195 and CO 98135 in particular.  But I also have doubts about the veracity of CO 06156 and CO 13017 who appeared to volunteer information in court without questioning which suggests they had been primed to give evidence.  Any evidence sought to be adduced through these officers in any future trial would be questionable although of course this will be a matter for the jury.

39.The practice of shredding working notes should cease immediately.  All working documents should be accounted for and placed on file.

40.Lastly, I am sure that Customs & Excise have systems in place for the arrest, detention and questioning of suspects.  I have seen little evidence of it before me.  The approach of the officers in this case was ambivalent at best and deliberately seeking to subvert the rights of the individual at worst. This should not have happened. More senior officers including Inspector Lui and CCO Chow did not do their job and wholly failed to supervise two officers who appeared to be on a frolic of their own.  The Commissioner for Customs & Excise should in future ensure that any guidelines he has are followed to the letter and that proper supervision is in place at all times.

CONCLUSION

41.For the reasons given above I find the VRI VDP6, Post Record VDP4 and mobile phone VDP9 to be inadmissible at trial.

Mr Duncan Percy, counsel-on-fiat, for the Department of Justice

Mr Boey Chung, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the defendant