HKSAR v. Ahmed Shamir

HCCC 176/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 176 OF 2016

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R U L I N G   O N   A D M I S S I B I L I T Y

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Introduction

1.By the amended Grounds of Objection dated 14 August 2017, the defendant submits that the post record Exh VDP115 and the video recorded interview (“VRI”) Exh VDP109, VDP121a and VDP121b, should not be admitted as part of the prosecution’s case before the jury.  The defendant submits they are inadmissible on the basis that any incriminatory remarks made therein, were made involuntarily as a result of assaults upon him at the time of arrest and caution, and inducements made by members of Customs & Excise (“C&E”) thereafter.  He also alleges that he was coached before the VRI as to parts thereof.

2.An informal identification parade was held on 11 August 2017 and the following officers of C&E were identified as being relevant to the voire dire proceedings:

Inspector	Tsang Man-chi (Ms)	Interviewing Officer
Inspector	Tse Fu-ming	Interviewing Officer
CO 0544	Ng Man-tak	Arresting Officer
CO 0644	Kwok Sui-lun	Exhibits Officer
CO 99184	Man Tak-kee	Guarding Officer
CO 9892	Chan Kin-fai	Notice to Persons in Custody

A further informal identity parade took place on 15 August 2017, in open court, because it became apparent that the parties and the court may be at cross purposes as to whom the defendant accused of which acts.

3.Both parties asked that the VRI be viewed in full. The defendant has a good command of English and the substantial part of the VRI was undertaken in English.

4.It soon became clear that the allegations contained within the amended Grounds of Objection were not sufficiently precise and matters were put to witnesses which were not addressed at the outset within those grounds.  Thereafter, the defendant gave evidence and further allegations arose, which had not been put to the relevant witnesses.  The prosecution did not ask to recall those witnesses save for CO 99184 Man Tak‑kee, without objection, on a subject which arose ex improviso.

5.There was no half time submission and it was therefore accepted by the defence that the prosecution had made out a prima facie case in respect of voluntariness.  In their final submissions, Mr Raffell on behalf of the prosecution no longer sought to adduce the post recorded statement under Exh VDP115 and Mr Arthur, on behalf of the defendant took no issue with the oral evidence of the arresting officer being given in trial.  That issue therefore falls away.

6.The defendant gave evidence.  In chief he told the court that he had been asked to accept a parcel on behalf of his friend Saddam and that to that end, Saddam had given him a mobile phone.  It was to this number that C&E had called in order to carry out a controlled delivery which took place between the defendant and two C&E officers, dressed as Fedex agents, in the Wah Tak Building which is the defendant’s home address.  The defendant maintained that he told the Fedex agents that he did not know where the parcel had come from or what its contents were and he did not want to accept it but was required to sign an empty document and had put down his correct name and HKID as he had made it clear that he was not the person named on the parcel.  It was at this point that he was arrested and cautioned, although he said in evidence that he did not understand this.  Other officers rushed out at this time.  He maintained that the two Fedex agents, CO 0544 and CO 0644, beat him.  He also said CO 99184 pulled his hair and used foul language.  He was frightened and was still frightened when the post record was carried out in the vehicle.  He asked the officers to let him go.  Both at the scene and later in the Langham Place Hotel, Inspector Tsang had said inter alia, “Don’t cry baby.  We will listen to you but just stop crying”.  She said that if he cooperated with them, they would let him go.  In the Langham Place Hotel, she was the only person he spoke to.  She had also said “We know you are a baby.  You are innocent.”  Later, back in the C&E offices in the airport, Inspectors Tsang and Tse had said that they would interview him and then let him go.  The interview was a formality and he would be allowed to go home.  At no time was he allowed to call his father, even though he asked to do so at the hotel and at the airport.  Before the video interview both Tsang and Tse had told him that if he answered as they told him to, then he would be released.  The defendant said the principle reason he underwent the VRI was so that he could go home but he was also very frightened as he had never been in this position before; there were many people around him; he was alone and could not contact his father.

7.Under cross examination, the defendant accepted that much of what he had said at the beginning of the interview had been of his own volition.  He maintained that he had been coached over a period of two days by both Tsang and Tse.  He accepted that he had mentioned matters in the VRI upon which he had been coached when he agreed with it but had refused to mention other matters upon which he had been coached, which he disagreed with, such as the fact that he was to say he knew what was in the package.

The Law

8.It is well established that no extra judicial admission against interest is admissible in evidence against a defendant unless the prosecution can show that it was made voluntarily in the sense that it was not obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority: Ibrahim v Rex [1914] AC 599 at 609.  Put more simply in R v Sang [1980] AC 402 as referring to confessions made by “threats or promises” as is suggested here.

9.Under s41(3) of the Criminal Procedure Ordinance, Cap 221 (“the CPO”) the court may conduct a preliminary issue in the form of a voire dire as to the admissibility of admissions against interest, before the jury is empanelled.

10.The issue of voluntariness is one of fact: R v Choi Chun-keung [1985] HKLR 75.

11.The issue is to be determined by looking at the acts complained of as they applied to the defendant with his own particular idiosyncrasies of personality, age, experience, personal circumstances and the circumstances of the case at hand.

Conclusion

12.It has been two years since the arrest and caution of the defendant during which time he has had little to think about but this matter.  I take the view that part of his version of events may not be accurate, not because he has necessarily lied but because his memory is no longer fresh.  However, I do not accept that he was deliberately assaulted at the time of his arrest.  The officers who gave evidence in that respect were credible, were not undermined in any way in cross examination and readily accepted that the defendant was amenable and cooperative.  There would be no reason, in this routine operation, to require any form of aggression not least because they would have in mind the possibility of a future controlled delivery and would require the cooperation of the defendant for that to be put into effect.  These were experienced C&E officers who would have quickly realised that the defendant was not the ultimate recipient.  He was slight of frame and quite young.  Nothing about him would suggest the need for force.  In addition, there was no injury, no requirement for medical attention and no complaint made at any time either to C&E or to the police when he was transferred into their custody after charge.

13.Taking his character into account, having seen him in interview and under examination, I can see that he would have been frightened by the experience even where no unwarranted force was used and no doubt would have been anxious about what was to happen to him.  This is the unfortunate product of any arrest especially arrest in these circumstances where a large quantity of drugs is involved.  That can have been the only conclusion drawn by the defendant in that position that day, knowing what he did about D2 (KHAN SADAM BILAND) and the circumstances in which he was asked to receive this parcel and that was that this was a drugs arrest.

14.An interview cannot be ruled inadmissible simply because the arrested person is frightened as a result of being arrested without more.  Foul language in itself, if there was any, cannot found sufficient grounds.  The defendant may have been young but he was an adult and he was by his own admission mixing with the sort of people who would not be unused to such language in their everyday vocabulary.

15.It is unfortunate that an Urdu interpreter could not be made available until 1 July 2015 but the defendant was not prejudiced by this.  His command of English is sufficient for him to understand what was happening to him and documentation was provided in English which he admits he able to read.  I do not accept that he was unaware of either his arrest and caution or of his rights when issued with the Notice to Persons in custody.  Any sense of oppression resulting from the delay in providing an interpreter is not sufficient to render the ensuing interview inadmissible as the defendant was provided with accommodation to sleep, was fed and was dealt with wholly professionally by C&E when being processed.

16.There remains the allegation that he was coached as to part of the interview by Inspectors Tsang and Tse and that he provided certain answers in interview because he had been told that he would be able to leave if he cooperated in that way.  This was his primary submission at the end of the day.

17.I do not accept that the defendant was coached at all, at least not in the sense that any C&E officer told him what to say and provided him with information about which the defendant had absolutely no prior knowledge.  Although it was not canvassed with any of the officers, I accept it is possible that conversations took place in the intervening period, conversations which the defendant alluded to in evidence and in which the defendant volunteered all sorts of information which was happily received by the C&E team.  I say this because the defendant said he had spoken with C&E over those two days.  He is generally effusive.  He was effusive in interview and in evidence.  It is difficult to control him once in full flow.  This can be seen on the VRI and was evident in court.  It is possible that the defendant believes that anything he said during that time was the subject of what he likes to term “coaching” whereas and in fact it was simply a one‑way flow of information which the C&E accepted and no doubt, urged him to repeat under interview.

18.I come to this view because the defendant made it clear under cross examination that he only gave in interview information he agreed with (whether that was coached or not) and where he disagreed with it, he did not say it.  Two matters arise from that.  Firstly, that he appears to have conceded that what he said was correct to his knowledge (although the issue of the truthfulness of his statements is not to be decided upon here) and secondly, he chose when to comply with the provision of information to C&E and when not to.  The first matter suggests that the information came directly from the defendant himself as the C&E could not have had such detailed information within their own knowledge at that stage of the investigation and secondly, he acted wholly voluntarily.  Any inducement, if made, was not operative, as he made it clear that he refused to say that he had knowledge as to the contents of the parcel which he maintained is what the C&E wished him to do.

19.Accordingly, I do not find that any admissions against interest made within the VRI VDP121, have been made involuntarily.  I find the VRI Exh VDP109, VDP121a and VDP121b prima facie admissible subject to an application as to editing matters which are either submitted to be irrelevant or where their prejudicial effect may outweigh their probative value.

Mr Andrew Raffell, counsel-on-fiat, for the Department of Justice, for the prosecution

Mr Michael Arthur and Ms Emma TC Tsang, instructed by Kevin Ng & Co, assigned by Director of Legal Aid, for the defendant (on 11 August 2017)

Mr Michael Arthur, instructed by Kevin Ng & Co, assigned by Director of Legal Aid, for the defendant (on 14‑18 August 2017)