HKSAR v. Hussain Shakeel Rasheed
Read the full judgment text of DCCC 556/2017 on BabelCite. This District Court judgment was delivered on 15 February 2018.
1. The defendant denies one count of burglary.
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DCCC 556/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 556 OF 2017 ------------------
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----------------------------------- REASONS FOR VERDICT ----------------------------------- Charge 1.The defendant denies one count of burglary. Introduction 2.On 20 April 2017, an employee (PW1) of a restaurant at Nathan Road Kowloon put her rucksack in a locker inside the staff room. Later in the day, she found the locker had been prized open and her rucksack missing. 3.CCTV footage revealed a man entering the staff room and later leaving with PW1’s rucksack. A female was with that man but she only stood at the doorway and looked around. 4.Ten odd days later (7 May 2017), a police officer (PW1) saw the defendant in the street and found him look like the wanted burglar. Under caution, the defendant admitted the offence. 5.In a later video interview at the police station, the defendant admitted the same and confirmed what he allegedly said under caution during arrest. 6.The defendant challenges the admission, saying:-
Prosecution case 7.Prosecutor calls PW1 – PW6 to testify. 8.There are prosecution exhibits P1 – P5 and P8. 9.In the special issues hearing, provisional exhibits PP6, PP7, PP7A, PP7AA, PP9, PP10A, PP10B, PP10AA, PP10AAA are ruled to be involuntary statements or so related. They are inadmissible. The alleged verbal admission made by the defendant to PW1 is also ruled to be involuntary and therefore inadmissible. Admitted facts 10.It is admitted under s.65 of the Criminal Procedure Ordinance that a burglary took place on 20 April 2017 inside the staff room of a restaurant in Yau Ma Tei. A male entered the staff room and prized open a locker, stealing therefrom the properties of PW1. At that time, a female was with the male. The female stood outside the staff room and looked around. The male left the room with PW1’s rucksack (containing the stolen properties, namely, an orange wallet, PW1’s ID card, HK$2,400, RMB1,900 and a black Nokia phone). CCTV 11.It is also agreed there was CCTV footage P1 (1625 hr – 1628 hr) and P2 (1617 hr – 1620 hr) capturing the male burglar and his female companion. [The stated times were different because the two cameras were not synchronized. They, however, relate to the same period with the cameras capturing the same moment from 2 different angles.] 12.The CCTV footage shows the girl came out of the staff room after entering for half a minute. The man had stayed in the room for about 2 minutes before he came out with PW1’s rucksack. [It is agreed that the images are not clear enough for sure identification.] Arrest / PW1 – PW4 13.PW1 (PC9057), PW2 (PC5508), PW3 (PC58492) and PW4 (Sgt 58738) were a team of 4 officers in plain clothes performing patrol duty in Yau Ma Tei on 7 May 2017. 14.PW1 had previously studied the Crime Alert (P8) of this case. That document contained information of this burglary and some blurred images extracted from the CCTV footage. 15.On 7 May 2017, at around 8:45 pm, PW1 saw the defendant crossing Dundas Street near Reclamation Street. PW1 thought the defendant looked like the male burglar. He thus stopped and questioned the defendant. 16.PW1 noticed that the defendant was not entirely Chinese. He found out the defendant was of mixed blood but could hear and speak Chinese. The defendant, however, could not read Chinese; he could read English. 17.PW1 spoke to the defendant in Chinese and the defendant answered in Chinese all along. 18.PW1 related the particulars of the burglary to the defendant and said he looked very similar to the suspect. He cautioned the defendant. The defendant immediately replied he committed that offence. He also told the officer that he stole the rucksack out of greed. 19.PW1 then declared arrest and cautioned the defendant again. The defendant further said he stole the rucksack because he had no money and he could not remember where he had dumped the rucksack. He also said he had spent all the money. 20.The defendant was taken back to the police station. 21.In the police station, PW1 issued a “Notice to Persons in Police Custody” (PP6) to the defendant. He recorded the defendant’s admission in his notebook. As the defendant could not read Chinese, PW1 did not ask him to acknowledge the post-record. He just gave the notebook to the Exhibit Officer for custody and did not deal with the defendant further. 22.Defence Counsel alleges that some plain clothes officers pushed the defendant into an alley. The defendant was then shown a picture of the male burglar. He was asked to admit he was the person in the picture. Someone threatened to hit him. PW4 actually grabbed the defendant’s genitals. Later on, when the defendant was seated in the police van, PW2 threatened to frame him with a drugs case if he would not admit to the burglary. 23.PW1 denies all the allegations. He says he did not have the Crime Alert or any picture of the case with him while on patrol duty. He simply based on his memory of the burglar’s appearance in the Crime Alert pictures, which he had studied previously to identify the defendant in the street as the suspect. 24.PW2 – PW4’s testimony is of the same tone as PW1’s. All deny anyone had applied force, threat, inducement, coercion or oppression on the defendant. Video interview / PW5 – PW6 25.PW5 (DPC13814) was the investigation officer. PW6 (DSgt 46962) was his leader. The two had a video interview with the defendant on 8 May 2017. (The discs are P10A and P10B). In the interview, the two officers spoke Chinese while the defendant spoke English. There was an English/ Punti police interpreter to interpret for the parties. [The English/ Chinese transcript is P10AA; the fully English transcript is P10AAA.] 26.PW5 had made enquiry on the language ability of the defendant in the afternoon on 8 May 2017. At night, he went with PW6 and a police interpreter from their office in Tsim Sha Tsui Police Station to Yau Ma Tei Police Station, where the defendant was detained. 27.PW5 took the defendant out of the Duty Officer’s custody at 2143 hr. He issued a “Notice to Persons in Police Custody” (PP9) through the interpreter, who explained the contents to the defendant. This process finished at 2150 hr. The interview started after 49 minutes at 2239 hr and concluded at 2319 hr. The defendant was asked by PW5 if he agreed with the arresting officer PW1’s post-record (including his admission upon arrest). He answered in the affirmative. Upon further questioning by PW5 and PW6, the defendant again admitted to stealing from the restaurant. 28.PW5 says he had to brief the interpreter about the case before the interview. That took him less than 10 minutes. He himself had to re-arrange the documents he had prepared for the interview. That was done within 10 minutes. Then he used 5-10 minutes to start up the recording machine. PW5 says the interpreter also took a few minutes to explain the situation to the defendant. 29.PW5 agrees he only cautioned the defendant at Counter 213 though he had started to speak to the defendant at Counter 124 about PW1’s arrest and the defendant’s admission made to PW1. PW5 explains he thought he was only relating to the defendant the facts of arrest, so he did not administer caution then. PW5 now admits that with the benefit of hindsight he should have administered caution because he asked the defendant whether he agreed to the course of arrest (including his admission made to PW1). 30.PW5 denies that he had ever asked the defendant to remember what to say in the interview or coached him. He also denies he used bail to induce or threaten the defendant to cooperate. 31.The other officer PW6 also denies there was inducement, threat, coercion or oppression at any time. He admits it had taken quite a long time to start the interview. He cannot remember why. He tries to explain for certain preparation before the interview but that accounts for only about half of the 49 minutes between 2150 hr - 2239 hr. Special issues 32.Prosecutor relies on:-
33.Defence Counsel has detailed the grounds of objection in writing. It is alleged that some plain clothes officers pushed the defendant into an alley. There, he was asked to admit he was the person in the picture. He was coerced, assaulted, threatened, induced and oppressed by the officers. The defendant denied. Without being cautioned, he was taken back to the police station. 34.In the police station, PW3 warned the defendant to remember what to say later on the video interview. Later on, one of the interviewing officers PW5 reminded the defendant of the same. He threatened the defendant that if he did not say everything accordingly, he would be detained longer. The officer also coached the defendant on how to answer questions for the interview. 35.Counsel says the defendant did not make any admission at the scene of arrest. If he did, the admission was involuntary and therefore inadmissible. So was the video interview. 36.Counsel further complains that PW5 failed to caution the defendant before asking him in the interview to agree to the post-record of PW1. Mid-stage submission on special issue 37.The special issues hearing took place by way of alternative procedures. 38.After Prosecutor has called all the witnesses to testify, Defence Counsel makes the following submission. 39.As to the video interview, Counsel says the defendant was asked by PW5 to agree to the course of arrest, including the purported admission made to PW1. However, PW5 did not caution the defendant until the latter had confirmed the post-record. Counsel says PW5 had thus breached the defendant’s right of silence. Although the officer did caution the defendant subsequently, that did not remedy the situation as the defendant had already admitted the alleged allegation as post-recorded. Counsel says the defendant was obliged in such circumstance to continue to cooperate with the police and admit further in the interview. 40.Counsel also comments on PW5 and PW6’s failure to account for all that happened during those 49 minutes before the interview started. 41.Prosecutor replies that the defendant was only cautioned a bit late. He says if the defendant’s answers before that late caution have to be ruled out, those answers made after the caution are still admissible. Mid-stage ruling on special issues 42.What Defence Counsel submits is a matter relating to the court’s exercising discretion or not, should the complaint on delayed caution be held justified. It is to be considered only at the final stage in the special issues proceeding. 43.I rule the defendant has a case to answer on both special issues. The defendant’s evidence on special issues 44.The defendant elects to testify on the special issues. 45.The defendant is aged 25. His father is a Pakistani and his mother is half-Pakistani. 46.The defendant was educated up to Form 7 in Hong Kong. He speaks English at home but knows sufficient Chinese for communication. 47.On 7 May 2017 at night, the defendant was walking with 2 friends at Reclamation Street. He was pushed from behind. He turned round and saw three men. He asked what the matter was. Somebody in plain clothes said they were police and asked the defendant to speak later. He was then led to the middle of an alley at Dundas Street. From there, he could only see one of his friends standing at some distance. 48.At the alley, there were five to six plain-clothes officers. One asked if the defendant remembered what he did. The defendant was shown a black and white image of P2A but of much smaller size. [The defendant cannot remember whether it was a paper photo or a digital one contained in a mobile.] The officers accused he was the person in the picture. He denied. An officer asked the defendant to just agree the person in the picture looked like him. The defendant also refused. PW1 then held a fist against the defendant. The defendant was scared. Another officer PW4 told the defendant not to be stubborn. He grabbed the defendant’s genitals. The defendant pushed PW4’s hand away. Another officer PW3 said to the defendant in softer tone and asked him to admit. Other officers also said the person in the picture looked like him. Nonetheless, the defendant made no admission at any stage. Finally, someone said it did not matter whether he admitted or not. They would still take him to the police station. 49.A police van later came. The defendant was seated in the third row. PW1 and PW3 were next to him. PW2 sat in front of the defendant. At one point, PW2 used something plastic to touch the defendant’s hand. He said if the defendant would not admit he was the person in the picture, he would charge the defendant for a drugs case. The defendant protested. 50.Back to the police station, the defendant was brought before the Duty Officer. He did not make any complaint to the Duty Officer as he did not know how the system worked. 51.The defendant had asked when he could leave the police station. Nobody answered him. PW3 told him to remember what to say. The defendant understood that meant he had to admit he was the person in the picture. 52.The defendant says he had asked the uniform officers in the Report Room for permission to make phone calls. He wanted to contact his parents to hire a lawyer for him. No officer attended to his repeated requests. 53.On the next day (8 May 2017), PW5 took him to the interview room. On the way, PW5 told the defendant that he should know what to say. The defendant still denied he was the person in the picture. The other officer PW6 spoke to PW5. The defendant heard the former say, “What do we do?” 54.The defendant was brought to the interviewing room. PW5 and PW6 wrote down some questions and answers. They went through those with the defendant. At that time, the interpreter was not in the room. 55.The defendant says he was tired then. For all that had happened since 7 May 2017, he felt there was no choice for him so he cooperated to answer according to ‘script’. PW5 had told him if he did not answer accordingly, he had to stay longer. The defendant feared if he did not, he would have to stay in the police station much longer and there would be more troubles for him. He did not know how to deal with the situation. 56.The interpreter was only summoned into the room afterwards The interview then began. 57.The defendant admits he did sign on the notices (PP6 and PP9) but he cannot remember the exact circumstances of his so signing. Final submission on special issues Prosecution 58.Prosecutor says PW1-PW6 are all credible. It is inconceivable that PW5-PW6 would rehearse the interview with the defendant in so many details as recorded. The stated times on the various documents can show the defendant makes up his allegation. Defence 59.Defence Counsel submits that all prosecution witnesses are incredible. It is hard to believe PW1 did not carry any photo of the suspected burglar with him during anti-theft patrol. After all, the officer had little basis to identify the defendant as the burglar because the CCTV images were less than clear. 60.Counsel points out PW2-PW4 have not corroborated PW1 on the content of the purported admission. 61.Counsel comments on PW1’s adding his own words after the alleged caution to instill an encouraging or urging effect on the defendant to speak. [PW1’s post-record shows that after each of the two alleged cautions, PW1 told the defendant that if he had anything to say, he should say it then.] 62.Counsel also criticizes PW1 for not dealing with the post-record appropriately in that he failed to have it translated to the defendant for his immediate understanding and acknowledgement. 63.As to the video interview, Counsel repeats his earlier submission made in the special issues proceeding (see paras. 39-40). That is, PW5 failed to caution the defendant before he asked the latter to confirm the course of arrest (including the purported verbal admission). 64.Counsel says it can be seen from the video record that during the interview the defendant was not only tired but his will was sapped. That was apparently due to what PW5-PW6, and earlier PW1- PW4, had done to the defendant. He was made to cooperate and to admit the offence. 65.Counsel points out that both PW5 and PW6 failed to account for at least twenty minutes of the time before the interview started at 2239 hr. He submits Prosecution have not proved beyond reasonable doubt on both special issues. Ruling on special issues Arrest and verbal admission 66.PW1 says he relied on his memory of the compressed burglar’s image printed on the Crime Alert (P8) to identify the defendant in the street. However, the CCTV footage was already of poor quality; the compressed images printed on P8 are more blurred. The burglar’s face was hardly recognizable from any of those images. Defence Counsel is right to say there is little basis for PW1 to find the defendant strikingly similar (in PW1’s own words) to the wanted person. 67.According to PW1, he did not have one single case in mind when going out on patrol duty. There were many cases with a number of suspects for him to look for. He denies he had brought with him the Crime Alert to assist his job. But without any written information, it is hard to see how he could remember the date, time, address and various lost properties of this particular burglary among other cases. Yet, according to PW1’s note book in which he recorded how he mentioned in his caution in the street, without any aid, the 6 lost items to the defendant. They were then cited in the exact sequence as that appeared in the Crime Alert. The officer even got the colours of the black rucksack, the orange wallet and the black Nokia phone all right. He also cited accurately the time of the burglary and the full address of the restaurant. It is hard to imagine how PW1 could achieve all these without any documentary aid. 68.When the defendant gives evidence in court on the special issues, it can be seen that he is a short speaker. In the video interview, he was also not enthusiastic to offer more information than what he was asked of. His answers were thus brief and seldom composite. The alleged admission as recorded in PP7, however, was not of this type: on page 44, the defendant did not just say he did that case, he also said he stole the rucksack out of greed; on page 46, the defendant said he stole the rucksack because he had no money, and that he could not remember where he had dumped the rucksack, and that he had spent all the money. 69.PW1 says the defendant volunteered to admit so much immediately upon caution and without prompt. Why would he when PW1 only said the defendant looked strikingly similar to the suspected burglar but with no concrete proof against him on hand? 70.At that time, PW2-PW4 were just next to the pair. These three officers should not be indifferent to what PW1 was enquiring from the defendant. Yet, none of them would repeat any part of the defendant’s alleged admission. 71.I am not convinced the defendant had been dealt with by PW1 – PW4 in the circumstance as they testify. 72.On the other hand, the defendant gives evidence on the special issues. He is not eloquent. He pauses and stutters at times. But that was how he appeared in the interview. I cannot say his testimony is incredible; there is a ring of truth in his complaint. 73.I really doubt if the defendant made the alleged admission to PW1. If he did, I doubt if he said that voluntarily. 74.I find Prosecution have not proved beyond reasonable doubt that the purported admission was voluntary. I rule such admission, if ever made by the defendant to PW1, inadmissible. Video interview and the post record 75.The post-record of the purported verbal admission during arrest was not put to the defendant for confirmation until the video interview. 76.As the purported verbal admission is inadmissible. So should the post-record. 77.However, there is a further reason that the post-record and indeed the whole video interview cannot be admitted. PW5 failed to caution the defendant before asking him to agree to the post-record. Advertent or not, PW5’s failure had breached the defendant’s right to silence. That not only affects the admissibility of the post-record but also poisons the rest of the interview. Although PW5 did caution the defendant at Counter 213, it came too late. The officer had already asked the defendant to confirm the purported admission. What PW5 and PW6 further asked in the interview was quite superfluous. I agree with Defence Counsel that in such circumstance the defendant was obliged to continue to ‘admit’ what he was accused of. 78.For this reason alone, the rest of the video interview should be inadmissible as much as the post-record part. 79.Actually, I am also not satisfied that PW5 and PW6 have been frank on what transpired before the interview. 80.There were 49 minutes before the interview after PW5 had issued Pol 153 (PP9) to the defendant. The officer could not fully explain how the time was spent. 81.The other officer PW6 admits it was a long time lapsed. He also could not explain how all the time was spent. 82.The defendant’s testimony is that the two officers had reminded him of what to say in the interview. There was a rehearsal of questions and answers written down by the officers as ‘script’. That exercise would take up some time. 83.Prosecutor submits the time did not allow for such detailed rehearsal. Furthermore, the police interpreter was there. I am not persuaded by both arguments. 84.Firstly, that interpreter has not been called to strengthen the prosecution case, or to put it the other way, to undermine the defendant’s accusation. 85.Secondly, the questions and answers asked by the two officers during the interview were not many. They were all short and simple. If there was previous discussion as alleged by the Defendant, it would not take hours. Ten to twenty minutes would be sufficient. The two officers fail to account for about 20 minutes of the 49 minutes in question (2150 hr – 2239 hr). As said, there is also a ring of truth in the defendant’s accusation. 86.I find Prosecution have not proved beyond reasonable doubt that the video interview was voluntary. PP10A, 10B, 10AA and 10AAA are thus ruled inadmissible; the ancillary document PP6, PP7, PP7A PP7AA and PP9 are also inadmissible. No-case submission 87.Defence Counsel submits that, without any admission, Prosecution has no evidence to link the defendant to the burglary. 88.Prosecutor rightly and fairly agrees. No-case ruling 89.I find the defendant has no case to answer on the charge. He is, therefore, acquitted.
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