HKSAR v. Chow Heung Wing,Stephen and Others

Case No.HCCC 437/2015

Court

High Court CFI

Date31 May 2017

Judge—

Case Document

100%Judiciary

HCCC 437/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2015

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BETWEEN
	HKSAR
and
	CHOW Heung-wing, Stephen	1^st Defendant
	CHAN Kwun-chung	2^nd Defendant
	MAK Wan-ling	3^rd Defendant

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Before: Hon Barnes J in Court

Date of Hearing: 18, 19, 22 26, 29 May 2017

Date of Decision: 31 May 2017

Date of Handing Down of the Reasons for Decision: 12 December 2017

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REASONS FOR DECISION
(Ruling on Voir Dire)

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1.The prosecution intended to adduce evidence of the following against CHAN Kwun-chung (D2) at the trial:

(1) Verbal statements, demonstrations and documents provided to various experts and/or investigating officers by D2 during visits to the Asia Pacific Stem Cell Science Limited (APSC) on various dates between 6 October 2012 and 10 December 2012; and

(2) Two witness statements provided by D2 to the police on 18 and 25 October 2012 respectively, with documents provided by D2 on the latter date.

2.D2 challenged the admissibility of all the above-stated on the ground that they were not made/given by him voluntarily. Alternatively, D2 urged this Court to exercise its residual discretion to exclude the above‑stated from evidence on the ground of unfairness.

3.Having considered the evidence adduced and the detailed submissions, I ruled that I was satisfied beyond all reasonable doubt that D2 voluntarily provided his verbal statements, demonstrations and documents to the experts and/or investigating officers during all the visits to APSC. I was also satisfied beyond all reasonable doubt that D2 provided the two witness statements and the documents to the police voluntarily. Further, I ruled that this was not a proper case for me to exercise my residual discretion to exclude these admissible evidence.

4.I indicated at the time of the Ruling that I would give my reasons later. This I now do.

Background

5.On 4 October 2012, two patients were admitted into Ruttonjee Hospital suffering from septic shock. Enquiries revealed that they both had received intravenous CIK‑cultured blood infusion at the beauty parlour belonging to the DR group in Causeway Bay. Personnel at the Ruttonjee Hospital reported the matter to the Department of Health (DH). Dr Edmund Fong made a report to the police, suspecting there was an “illegal activity of practising medicine without registration”. The police cordoned off a laboratory belonging to APSC in the evening of 4 October 2012. On 5, 6, 9, 10, 16, 17 and 26 October 2012, 28 November 2012 and 10 December 2012, the police, together with various experts, visited APSC to carry out investigations.

6.During the visit on 5 October 2012, a staff member Ho Wai‑yan (Ho) informed the investigating officers that, at the telephone instructions of D2 (who was then not in Hong Kong), she had made 3 serum/saline samples and labelled each one with the name of the 3 patients (who were hospitalized) and passed them to another staff member Manton Cheung (M Cheung) to do endotoxin testing. Both Ho and M Cheung gave a cautioned statement on 6 October 2012 in relation to the three serum/saline sample.

7.D2 returned to Hong Kong on 5 October 2012 but he only went back to APSC on 6 October 2012. He was present when the police and various experts visited APSC on various occasions between 6 October 2012 and 10 December 2012.

8.On each occasion, the police showed a search warrant to D2 and explained its contents. All the search warrants referred to the investigation of the offence of “Administering poison, etc. so as to endanger life or inflict grievous bodily harm” (Administering poison).

9.D2 was not cautioned at any time during these visits, nor when he gave the two witness statements on 18 and 25 October 2012 respectively. The only time he was cautioned was in relation to the three serum/saline samples which he had allegedly given instructions to Ho to prepare. The cautioned statement was taken from him on 25 October 2012, prior to his 2^nd witness statement of the same date.

Voluntariness

10.I will first deal with the issue of voluntariness.

11.It should be borne in mind that Mr Albert Cheung, counsel for D2, had clearly indicated to this Court there was no allegation or suggestion of any impropriety on the part of the police or the experts. There was no allegation of any force, inducement, or oppression exercised by any one on D2 to make him provide the verbal statements, demonstrations, and documents during any of the visits; or to provide the two witness statements and documents to the police on 18 and 25 October 2012.

12.The stance of D2 was along the line that in all the circumstances he had no choice but to comply with the requests of the police and the experts to provide the verbal statements, demonstrations and documents during the visits at APSC. In the same vein, D2 felt that he had no choice but to give the two witness statements.

13.The circumstances referred to by counsel for D2 can be summarized as follows: D2 was a man of clear record and had never been questioned by the police before; D2 did not know that he has the right to remain silent; when D2 returned to APSC, the place was already under the control of the police; he was shown a search warrant on each occasion and was explained its contents, it was his understanding that the police were investigating an Administering poison offence and he may be arrested if he interfered with the investigation; and, by the time the police came on 6 October 2012, he knew 3 customers had ended up in hospital after receiving CIK treatment, a product he was responsible for making.

14.Mr Cheung submitted that under these circumstances, it was not surprising that D2 felt he had no choice but to comply with the request of the police to answer questions put by the experts.

15.D2 in his testimony also mentioned that on each visit, he was singled out by the police even though he had requested the police to make enquiries from his superior Eva Chow. Eva Chow had told him to answer questions from the police and since he was an employee, he had no choice but to comply. D2 said he was outnumbered by the number of police and experts and felt obliged to answer their questions and to perform the demonstrations.

16.D2 also said he did not have the benefit of a lawyer to look after his interest at APSC (the lawyer present was the lawyer of the company who did nothing for him). Whilst he had arranged for his own barrister to accompany him to the police station to give the statements on 18 and 25 October 2012, he felt that he had no choice but to give the 2^nd statement on 25 October 2012 as he was taken alone to see the superior police officer Chief Inspector Wu (CIP Wu) after the completion of the cautioned statement. CIP Wu told him he would be free to leave after answering some questions.

17.I have carefully considered the evidence of all the prosecution witnesses called for the voir dire, and the evidence of D2. I have no doubt in my mind, as clearly indicated by Mr Cheung on behalf of D2, that there was indeed no impropriety of any kind on the part of any police officer or experts when they dealt with D2.

18.I am satisfied beyond all reasonable doubt that D2 was willing to take part in providing the verbal statements, the demonstrations and giving the documents to the experts and the police. I totally reject D2’s testimony that he has taken part in answering questions, giving demonstrations, providing documents or giving witness statements involuntarily.

19.It is clear to me that D2 was changing his evidence when he went along. At the outset, in examination‑in‑chief, he did say that he was unwilling to take part, save for the occasion when Professor Yuen Kwok Yung came to investigate. He also confirmed quite clearly that he had given the two witness statements voluntarily. When he was asked by his counsel, D2 further explained that he gave the 1^st statement voluntarily as it would look strange if he did not give one when all his colleagues had already done so, he also gave the 2^nd statement voluntarily as the police told him there were clarifications to be made. D2 then testified he was taken to another room in which the superior officer told him he would be free to go after answering a few questions. D2 then said he felt he had no choice but to answer questions in relation to the 2^nd witness statement.

20.During cross-examination, the scope of his unwillingness was drastically reduced: he was quite willing to explain the process of CIK and to show the various experts the different steps of the processing; he only objected to questions about any documentation or bacterial testing, saying that those had nothing to do with him. He confirmed during cross-examination that he was notified beforehand and had arranged for his own lawyer to accompany him to give his statements to the police. He confirmed that he was willing to give them and the contents were accurate.

21.However, during re-examination, he changed his evidence again to say that all the verbal statements and demonstrations were not made voluntarily, including those given to Professor Yuen.

22.I bore in mind that despite his counsel having clearly informed this Court that there was no allegation of impropriety or inducement on the part of the police, D2 testified that after he had given the cautioned statement on 25 October 2012, the officer who had taken the statement from him had told him to go see the officer’s superior, CIP Wu alone. Though this request was made in front of his own barrister, D2 said his barrister did not say anything and he was taken to see CIP Wu alone. In the room CIP Wu asked him to answer further questions from an expert or experts. D2 understood the expert(s) were in the next room and he was unwilling to do so, so he told CIP Wu. CIP Wu told him then that he had to give a further statement and then he could go.

23.None of these were put either to the officer who had taken the statement or to CIP Wu. I find this piece of evidence totally incredible. I cannot believe that his own barrister, who according to him, was there to look after his interest, would have allowed him to go alone to see the superior of the statement-taking officer without demur. More interestingly, D2 clearly stated that he had told CIP Wu that he was not willing to answer any more questions from the expert(s). That is totally at variance with D2’s assertion that all along he felt that he had no choice, that he must comply with the requests of the police and the experts.

24.I was satisfied beyond all reasonable doubt that D2 was eager and willing to assist the police and experts to find out what had happened and why those women ended up in hospital suffering from septic shock after receiving CIK treatment. I did not accept his evidence that he had no choice in the matter.

25.Even if he had indeed harboured such a thought (which I did not accept), it would have been a “self-generated” belief which had nothing to do with any conduct on the part of any person in authority. There was no doubt in my mind that D2 had provided the verbal statements, the demonstrations and the documents voluntarily, out of his own free will.

26.I would also add here that during some of the visits, in particular the first one on 6 October 2012, D2 had the benefit of a lawyer provided by the company. I rejected D2’s evidence that the lawyer just sat there and did nothing. I was most impressed with the details given by Dr Tonny Ng in relation to this visit and I accepted Dr Tonny Ng’s evidence that the interview was smooth except it was interrupted when the lawyer gave advice to D2 out of the ear shot of those present in the conference room.

27.Coming to the two witness statements, quite apart from D2’s own testimony that he had given them voluntarily, I bore in mind that the police had forewarned D2 about the statement-taking and D2 saw fit to engage the service of a barrister to accompany him. I had no doubt that the 1^st witness statement was given by D2 voluntarily. As to the 2^nd statement, I bore in mind that by the time D2 gave it, it was after a cautioned statement had been taken from him in relation to the issue of the three serum/saline samples. D2 exercised his rights not to answer questions posed during the Record of Interview under caution. By the time the 2^nd witness statement was taken, no doubt D2 knew full well he could have chosen not to answer (even without any caution), he chose to answer because he had been asked to provide documents mentioned in the 1^st witness statement and he had brought those documents along to give to the police.

28.I had no doubt in my mind that D2 gave the two witness statements and provided the documents when giving the 2^nd statement voluntarily.

Exercise of Residual Discretion

29.I will now address the issue of unfairness and why I ruled that this was not a proper case for me to exercise my residual discretion to exclude these admissible evidence.

30.Counsel for D2 placed heavy reliance on the fact that D2 was not cautioned for any offence in relation to the three serum/saline samples until 25 October 2012. Mr Cheung relied on the fact that both Ho and M Cheung were cautioned on 6 October 2012. He submitted that the police should have cautioned D2 as they had reasons to suspect that D2 was involved in an offence of Perverting the course of public justice (Perverting justice). Mr Cheung also relied on the part of the Interim Report of DH after the visit on 5 October 2012 prepared by Dr Tonny Ng and his assistant, in which Dr Tonny Ng referred to the police considering charging the relevant people with offence of Perverting justice.

31.Further, Mr Cheung submitted that D2 was never cautioned for the offence of Administering poison when it was clear from the evidence that the police were conducting a criminal investigation during the various visits (with reference to the search warrants). D2 should have been cautioned so that he knew he had the right to remain silent.

32.I accepted the evidence of Senior Inspector Wong (SIP Wong) that at the time when he took over the case, no one really knew what had happened. It was clear that the various visits to APSC at the beginning was mainly for DH to find out the process of, and to see if anyone else could have been affected by, the CIK treatment. Hence during the first couple of visits, the questioning was mainly led by Dr Tonny Ng, with SIP Wong listening to D2’s explanation and jotting down medical terms unfamiliar to him. The later visits were for other experts to see if the source of contamination could be located and to understand more of the process of CIK treatment, in particular in relation to the procedure in the laboratory.

33.Whilst the police obtained the search warrants on the basis of an investigation into an offence of “Administering poison”, bearing in mind D2 was not the doctor who did the infusion (and in particular D2 was not even in Hong Kong when the infusions took place), and that D2 had been informed of the reason for the search, I did not find that the failure to caution D2 regarding the offence of “Administering poison” has any bearing on D2’s decision to answer questions, to do demonstrations and to provide documents.

34.As to the failure to caution D2 in relation to the three serum/saline samples, both CIP Wu and SIP Wong had given their reasons. According to CIP Wu, upon hearing what Ho had said on 5 October 2012, having considered that Ho and M Cheung were the persons who had physically handled the three samples and that D2 was not even in Hong Kong, he gave the instructions to caution both Ho and M Cheung. He did not think there were reasonable grounds to suspect D2 at the time.

35.SIP Wong did not consider there were sufficient reasons to suspect D2’s involvement until the test result revealed that there was no human DNA in the three samples. He then instructed his subordinate to caution D2 on 25 October 2012. Both denied that on 5 or 6 October 2012 the police were already considering the offence of Perverting justice.

36.Though I do not doubt Dr Tonny Ng’s evidence that, after the visit on 5 October 2012, he had heard the police mentioning charging those relevant people with Perverting justice, it appears to me that that might have been just an initial view or idea which did not come to fruition. I formed that view because it was a fact that in none of the cautioned statements the offence of Perverting justice was ever mentioned. In fact, no specific offence was mentioned in any one of the three cautioned statements (against Ho, M Cheung and D2), just the allegation that D2 had instructed Ho to prepare the three samples of serum/saline in replacement.

37.In any event, I was in no doubt that the failure of the police to caution D2 earlier made no difference whatsoever to D2’s willingness in answering questions, doing demonstrations and producing documents to explain the CIK procedure. Quite apart from my findings that D2 was willing to assist to find out what had caused the customers who had received CIK treatment to end up in hospital, the fact that on 25 October 2012, after he was cautioned in relation to the three samples and he had exercised his rights not to answer questions, with the benefit of legal advice, he was willing and ready to provide the 2^nd witness statement (having brought along documents to give to the police), further strengthened my findings that D2 was all along willing to assist the police and the experts to understand what CIK treatment was about and what the process involved.

38.Even if the police should have cautioned D2 earlier and were in breach of the Secretary for Security’s rules and directions, there was no evidence before me from D2 that but for the breach of the rules (in failing to caution him for the three samples), he would not or might not have provided the verbal statements, or the demonstrations, or the documents to the experts and /or investigating officers during any of the visits, or to give any witness statement to the police. This was a bare assertion of the breach of the rules and was not sufficient for admissible evidence to be excluded (see HKSAR v Chiu Kwok Ho[1]).

39.Further, in my view, the issue of the three samples was quite separate and distinct from the desire to find out what had taken place and to locate the source of contamination during the visits. The police were arranging for different experts from different disciplines to try to understand what had happened, and to locate the source of the contamination. As I had said, D2 was willing to assist in those respects and it did not matter that he had not been cautioned in relation to the three samples until 25 October 2012.

40.Not only had D2 continued to provide the 2^nd statement after he had given the cautioned statement on 25 October 2012, he had also willingly taken part in answering questions and providing demonstrations at APSC during visits after 25 October 2012 (ie on 26 October 2012, 28 November 2012 and 10 December 2012). These again further strengthened my view that the failure to caution D2 had no effect whatsoever in his willingness to assist.

41.Criticism had been made by counsel for D2 in the lack of contemporaneous records by the experts and the police, making it difficult for D2 to answer the allegations. Bearing in mind that D2 was basically repeating what he had already told Dr Tonny Ng on the first few occasions about the process of the CIK treatment and the various steps, I did not find that the lack of any contemporaneous records made by all the experts and/or investigating officers of importance, particularly when Dr Tonny Ng and his assistant had indeed made handwritten notes which were incorporated into a rather detailed interim report.

42.I did not find there was any unfairness in the treatment of D2 which warranted for the exercise of my residual discretion to exclude admissible evidence.