HKSAR v. Chan Yiu Shing and Others

(Ruling 4)

HCCC 41/2016

[2018] HKCFI 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON THE ADMISSIBILITY OF THE 5^th DEFENDANT’S CAUTION STATEMENTS AND RECONSTRUCTION VIDEO

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1.The sole issue to be determined in relation to the 5^th defendant’s three video recorded interviews and video recorded reconstruction variously conducted on 15 and 16 June 2015 (Exhibit PP542, PP542A and PP542A(T) (1^st VRI); Exhibit PP546, PP546A and PP546A(T) (2^nd VRI); Exhibit PP552, PP552A and PP552A(T) (VR Reconstruction); and Exhibit PP549, PP549A and PP549A(T) (3^rd VRI) is the question of voluntariness.

2.If the prosecution has proved beyond a reasonable doubt on the whole of the evidence that a statement was made voluntarily by its maker, it is admissible. If, for any reason, it was not made voluntarily, it is inadmissible. If the circumstances in which it was made were oppressive, including where violence, threats or inducements have been used or made, it must be regarded as having been made involuntarily. There is also a further safeguard, that a voluntary statement may still be excluded if it was obtained by unfairness or trickery.

3.The 5^th defendant in his written grounds of objection made no allegations of improper conduct by the police when he was initially arrested and cautioned on 14 June 2015.  He took no issue as to the voluntariness of the verbal statement he made to DSPC 54063 who recorded it in his notebook (Exhibit P524).  He said:

“I only know Pennelli Rizzy and Hui Ka-ki. The two of them are lovers. I came to know them while playing online video games. We have gone out about ten times. I have been to Ho Chung for adventure only two times, at night time on both occasions.”

4.According to the written grounds of objection, the 5^th defendant alleged that the three VRIs and the VR Reconstruction were taken by DSPC 54063 (as to the 1^st and 2^nd VRI) and DPC 873 (as to the 1^st VRI) through acts of violence, threats and inducement. 

5.The objections concern events in the interview room just prior to the conduct of the 1^st VRI, the journey from Tsing Yi Police Station to Kwai Chung Police Station and in the interview room prior to the conduct of the 2^nd VRI. 

6.It was alleged that in the interview room for the 1^st VRI, DSPC 54063 threatened the 5^th defendant and pulled his hair; DPC 873 slapped the 5^th defendant and threatened him; DSPC 54063 made him sign the Pol.153; and DSPC 54063 showed written questions to the 5^th defendant and coached him how to answer the questions.  Furthermore, DSPC 54063 threatened the 5^th defendant that once the other arrested persons admitted to their and his involvement, he would be in serious trouble if he remained silent. 

7.It was also alleged during the car journey to Kwai Chung Police Station that DSPC 54063 questioned him about a blue box and showed him a picture of it and through threats and physical violence made him admit that he had seen it before.  The physical violence was that DSPC 54063 elbowed the 5^th defendant to his chest.  It was also alleged that in the interview room of the 2^nd VRI, DSPC 54063 showed him a piece of paper with questions and coached him with his answers. 

8.Both DSPC 54063 and DPC 873 gave evidence.

9.Mr Keith Fung, for the 5^th defendant, cross-examined DSPC 54063 on a range of matters including the period of time that he and the 5^th defendant together with DPC 873 were in the interview room prior to the 1^st VRI.  The period of time was 32 minutes.  He also questioned him about the contents of the questions asked by him of the 5^th defendant.  Similarly to the 1^st VRI there was a period of time of about 25 minutes prior to the 2^nd VRI at the Kwai Chung Police Station where DSPC 54063 and the 5^th defendant were together.  Mr Fung questioned DSPC 54063 about this and the car journey from Tsing Yi to Kwai Chung Police Station. 

10.A particular point Mr Fung made in this challenge concerned entry 574 in the 1^st VRI.   DSPC 54063 mentions to the 5^th defendant in the form of a question that the 5^th defendant had said there were 8 to 10 smoke bombs. 

11.He was questioned as to when previously the 5^th defendant had said that to him.  There was no previous answer by the 5^th defendant providing this information.  He said it was his fault and that he may have heard it earlier but was not sure whether he heard it from the 5^th defendant or other people. 

12.The 5^th defendant gave evidence and made further allegations of misconduct by the police.  His evidence on these issues in some instances either changed or elaborated upon the matters mentioned in the written grounds of objection.  I note that he was not asked whether he had previously mentioned to DSPC 54063 about there being 8 to 10 smoke bombs. 

13.After careful consideration of all the evidence relating to the manner and circumstances in which the interviews and reconstruction videos were taken, including the allegations made by the 5^th defendant, and having due regard for the 1992 Rules and Directions on the Questioning of Suspects, I am satisfied as to their voluntary nature, and further satisfied that there are no other grounds upon which I should exercise my discretion to exclude them.

14.Accordingly, I rule that the 5^th defendant’s three video recorded interviews and the video recorded reconstruction are admissible.

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr Keith Fung, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 5^th defendant