HKSAR v. Wong Wing Man, Mandy Alias Wang Xuexin and Another

HCCC 76/2017

[2018] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 76 OF 2017

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RULING ON VOIR DIRE HEARING

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1.The sole issue to be determined in relation to the 1^st defendant’s witness statement dated 12 August 2015 (exhibit PP23 and PP23A) is the question of voluntariness. The challenge of the admissibility of the statement is in relation to Count 1 (the cruelty to a child offence), and not in relation to Count 3 (perverting the course of public justice offence) where the statement forms part of the actus reus of the offence.

2.If the prosecution has proved beyond 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 was oppressive, including where violence, threats or inducements had 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 it would be unfair to admit it into evidence. 

3.The statement in question was taken from the 1^st defendant by WDPC10313 on 12 August 2015.  The officer together with Detective Sergeant 53196 attended the home of the 1^st defendant at about 18:05 hours on 12 August 2015.  The two officers were part of a team that had been divided up to make inquiries in relation to the hospitalisation of the 1^st defendant’s daughter (the victim) and had been instructed to conduct an investigation in relation to a child abuse case.  The officer explained to the 1^st defendant that they would conduct inquires in relation to her daughter’s case and requested whether the 1^st defendant would provide a statement to give an account of the girl’s birth and background and why she had been hospitalised.  The 1^st defendant understood and agreed to provide a statement.  At 18:10 hours, the officer commenced taking the statement from the 1^st defendant which she completed at roughly 19:30 or 19:40 hours.  The 1^st defendant signed a declaration and signed the statement after it had been completed.  After she had read over the statement to the 1^st defendant, she let her read it and then she filled in the particulars of the chop at the end of the statement and asked her to sign each page and the corrections which she did. 

4.Two other officers who included a woman Sergeant 55630 went to the Princess Margaret Hospital to make inquiries about the condition of the victim.  Sergeant 55630 after having made her inquiries left the hospital at 18:50 hours and proceeded to the home of the 1^st defendant.  The woman sergeant when she arrived at the 1^st defendant’s home informed the 1^st defendant of her daughter’s condition.  After the statement had been taken, the 1^st defendant became agitated and emotional and started to cry. 

5.WDPC 10313 explained that they remained at the home until about 21:00 hours because of the 1^st defendant’s distraught state.

6.WDPC 10313 confirmed that she did not caution the 1^st defendant at that stage because they were making inquiries.

7.Both WDPC 10313 and Sergeant 55630 denied that the 1^st defendant was assaulted, threatened or induced to make the statement. 

8.In the course of the voir dire hearing, Mr Leung Chun Keung, for the 1^st defendant, amended his written grounds of objection to add a further ground that there was a discrepancy in treatment between the 1^st defendant and the 2^nd defendant, in that the 2^nd defendant was cautioned when he was first interviewed.  (The original written grounds of objection was exhibit VD1 and the amended written grounds of objection was exhibit VD2.) 

9.On the following day, after the 1^st defendant had given a witness statement, the 2^nd defendant when approached by the police was cautioned.  

10.In order to address the issue as to why no caution was administered to the 1^st defendant, the case officer, Senior Inspector Chong Kwan Wai, was called to give evidence.  She explained that she had received a faxed report from Ms Cheung Hoi Len Helen, providing preliminary information and details of the condition of the victim and referring the case to the police for investigation (exhibit VD3).  The Senior Inspector also spoke to Ms Cheung.  She explained that although it was mentioned in the report that the Multi-Disciplinary Case Conference (MDCC) had defined the parents of the child as abusers, it was based on preliminary information and hearsay material.  She further explained that that was why the team was broken up into two to gather information from the hospital and from the mother. The report of Ms Cheung also included information that the child had been living in the mainland under the care of the grandmother and that she came to Hong Kong on 24 June 2015 to visit her family and that her condition was a result of prolonged malnutrition and the deprivation of medical care and treatment. 

11.After the statement had been taken from the mother, the Senior Inspector instructed her team members on the next day to interview the other children and the father (the 2^nd defendant). When police officers went to see the father he behaved suspiciously, and accordingly she instructed them to take a caution statement from him at that time (Pol 157).

12.I am satisfied that the police at that stage had an open mind in relation to the case and were making general inquiries. 

13.Following submissions from counsel, I ruled that there was a case to answer. 

14.The 1^st defendant gave evidence about the attendance of the police at her home and what took place including the taking of a witness statement from her.  She testified that WDPC 10313 arrived at her home together with another police officer or officers and asked her questions and that she wrote down what was said at the same time.  Not long after woman Sergeant 55630 arrived, who she described as having very big eyes that were fierce, and that she spoke to her in a very loud voice and banged the table and hit her head.  She could not recall what was said exactly, but roughly she asked her if she was the mother of the child and whether she was the carer, and she said she was not.  She said she was in an emotional state and was crying.  She said she did not read the statement and no one read it over to her.  She said she signed it because she was told to do so.  She confirmed that she was not in an emotional state when she arrived home, having visited the victim at the hospital.  She had been at the hospital from the morning until 6 pm.  It emerged during her evidence that she could not read traditional Chinese characters in which style the statement had been written by the police officer.  She said she could only read 1 percent of each page.  She said she could only read simplified Chinese characters. 

15.Even though a caution was not administered on the 1^st defendant, at that stage the police were carrying out general inquiries and treated the 1^st defendant as a witness and in order to gather information. 

16.I am satisfied that the police at that stage had not gathered evidence which would afford reasonable grounds for suspecting that the 1^st defendant had committed an offence.  I am further satisfied that even though the 1^st defendant may not have been able to read traditional Chinese characters, she was able to communicate in Cantonese and had the statement read to her and explained. 

17.After careful consideration of all the evidence relating to the manner and circumstances in which the statement was taken, including the allegations made by the 1^st defendant, that having due regard for the 1992 Rules and Directions for the Questioning of Suspects, I was satisfied as to its voluntary nature, and further satisfied that there is no other ground upon which I should exercise my discretion to exclude it.  I found that the allegations made against the police officers involved in or connected to the taking of the statement were making general inquiries at that stage and that the statement was made voluntarily by the 1^st defendant. 

18.Accordingly, I rule that the 1^st defendant’s witness statement dated 12 August 2015 is admissible.

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Tang & Lee, assigned by Director of Legal Aid, for the 1^st defendant

Mr James McGowan, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the 2^nd defendant