HKSAR v. Wong Yi Ching

HCCC 112/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 112 OF 2017

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Before: Hon Campbell Moffat J in Court

Dates of Hearing: 5-7 and 11 July 2017

Date of Decision: 11 July 2017

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D E C I S I O N

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1.This is an application by the defendant to disallow the VRI which took place between 19:56 and 20:20 hours on 24 September 2016, on the basis that some of the answers given therein were not given voluntarily. There is also an application in respect of the two Pol 153s, Exhibits VDP10 and VDP22, which the defendant maintains were not read out or explained to her despite her signature being found thereon and, lastly, a complaint that the post record, whilst correct in substance, is not correct as to chronology.

2.The Grounds of Objection are contained within three paragraphs in a document dated 30 June.  They state as follows:

(1) The D was told by PC 12196 to read the Notice to Persons in Custody herself but at no stage was the Notice explained to the D nor did PC 12196 ensure that the D knew the contents of the Notice before signing on the Notice.

(2) During the time of the Post‑Record, PC 12196 threatened and induced the D that it would not be to her advantage if she said she had the telephone number of Ah Po, since she had to wait until Ah Po was arrested and until it could be shown that the matters had nothing to do with her before she could be released.  PC 12196 also told the D that if she cooperated and gave the statement, she might be able to go.

(3) Shortly before entering the room for the VRI, PC 12196 reminded the D not to tell that she had the telephone number of Ah Po and also suggested to the D that she met Ah Po in that Morning.

3.These Grounds of Objection are inaccurate.  It now appears as to Ground One, that Mr Leung, on behalf of the defendant, relies upon what occurred in not one but two Notice to Persons in Custody, Exhs VDP10 and VDP22, and I assume he seeks leave to add the second Pol 153 to Ground One.  As to Ground Two, he no longer relies upon any suggestion as to threats made by PC 12196 (“PW1”).  The only complaint is as to an inducement and that inducement occurred during the taking of the post‑record, when PW1 allegedly said to the defendant that she should not mention Ah Po’s telephone number as it was not to her advantage to mention a means of contacting Ah Po.  He also allegedly said that if she should mention Ah Po’s telephone number, then she would have to wait for Ah Po to be located and arrested and it had to be confirmed that the defendant had nothing to do with the case before she could be released.  If she did not mention Ah Po, “it may not necessarily mean that she could not leave”.

4.The only relevant witness for the prosecution was PW1 PC 12196. This matter therefore turns upon my view of the veracity of that officer.  The defendant also gave evidence.  I considered both witnessed on an equal basis and I took into account the supporting documentation.

5.In respect of PW1, as to his general character, I found him to be a truthful witness who clearly took pride in his proficiency and who took sensible steps to ensure that those in his charge were handled appropriately.  He not only read out the Pol 153 but also explained it to the defendant and he noticed that she nodded at him when he did so.  As for the defendant’s general character, I found her to be clear and articulate in interview and did not appear at all phased by being in custody, quite the opposite.  She also nodded regularly through that exercise as well.  She said she reads and writes Chinese and she accepts she signed both Pol 153s.  I do not accept that these documents were not read out to her or that she did not have the opportunity to read them to herself and I find that she signed them knowing her rights.  I note, Mr Leung on her behalf, did not suggest to her in examination in chief or in submissions to me that she had actually been prejudiced by not understanding her rights or that she would have sought to exercise any particular one of them.  I am not prepared to rule out the Pol 153s if it is thought by the prosecution that they are relevant and should be adduced at trial.

6.The defendant takes no issue with the content of the post‑record Exhibit VDP9.  Her complaint is that it is incorrect as to the timing of events.  On that basis, Mr Leung wishes the officer’s notebook to be ruled inadmissible as well as his oral evidence upon the matter.  Once again, the defendant completed the declaration at the end of the notebook and signed at other points within it indicating that she had both read and understood the content.  That content shows that she made a comment after arrest and caution which amounts to her saying “I don’t know what this bag is.  I am only taking this bag to someone”.  It is wholly exculpatory.  I find the officer to be truthful and accurate as to the events of the arrest and caution and find that she made that statement after caution and as such it is admissible.  Even if it that statement had been made prior to arrest and caution, I would in my discretion, have allowed it in as it is a first reaction when tasked with a situation which on the face of it appears to be highly prejudicial to the defendant and she would have known that was the case at that time yet she gave an explanation which she should be allowed to rely upon.

7.The video recorded interview, VDP14, was also wholly exculpatory but the defence wish it to be rendered inadmissible nevertheless.  The prosecution wishes to rely upon it to prove presence and supply and from that will ask the jury to infer knowledge.  They say it is admissible even although it is prima facie exculpatory.  The basis of the defendant’s complaint is that she was induced by PW1 not to volunteer information as to her ability to contact a person she called “Ah Po” and that, as a result of that inducement, she altered answers to other questions to fall in line with her failure to disclose Ah Po’s contact details.  She also altered her answers to take into account PW1’s suggestion that she had met Ah Po that morning.

8.I do not understand why the defendant would wish to exclude wholly exculpatory admissions made either at the scene of arrest or in interview but that is a matter for her.  I can find no logic in the complaint made by the defendant in respect to her answers in interview.  I cannot see why the police would not want the contact details of Ah Po if there was an Ah Po who had been the person who provided the defendant with the drugs.  I cannot see why the officer would even know about the existence of Ah Po at this stage of the investigation prior to any interview or why it would be important to the police to have the defendant meeting with Ah Po that same morning.  In cases of trafficking, defendants are hardly ever given bail and I do not believe that PW1 would have suggested it.  Indeed, it does not appear that the defendant complains that he did so explicitly.  The defendant herself accepted that she knew she was going to be prosecuted but maintained that she thought she would get bail as a result of what he said i.e. it wouldn’t necessarily be the case that she wouldn’t be able to leave, if she refrained from giving information which would clearly be of assistance to both her and the police.

9.I considered the video recorded interview carefully as the defendant also complained that she was kicked by PW1 at one point because it appeared she was going to provide information she had been asked to withhold.  Throughout the interview the defendant sat upright with arms crossed and legs crossed.  She looked defensive and she spoke clearly, confidently and quickly without any real hesitation despite the transcript reading as if she was hesitant.  The officer did not move at the point the defendant referred to as the kick whilst I considered that she had simply adjusted her position in the chair very slightly.  I do not accept that she was kicked at that point.  I do not accept that she changed her story at that point because of a kick.  There were two officers in the room and two officers who escorted her to the room.  I do not accept that she was momentarily left with only PW1 such that he could remind her not to mention her ability to contact Ah Po or, out of the blue, to suggest that she had bumped into Ah Po that morning.  Accordingly, I do not find that any part of the VRI was entered into involuntarily and, if admissible on other grounds, it may be adduced.

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

Mr Leung Chun Keung, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the defendant