HKSAR v. Chan Ernest

HCCC 327/2016

[2018] HKCFI 1509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 327 OF 2016

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Before: Deputy High Court Judge Saw in Chambers

Dates of Hearing: 19–21 June 2018

Date of Ruling: 21 June 2018

Date of Reasons for Ruling: 4 July 2018

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R E A S O N S   F O R   R U L I N G

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1.In this matter objections had been taken on behalf of the defendant to the admissibility in evidence of—

(1)  an oral admission made to Police Constable 10233 WAT Ka‑wing at the time of his arrest and caution on 2 April 2016;

(2)  an entry in the notebook of Police Constable 10233 WAT Ka‑wing on 2 April 2016 which was signed by the defendant in several places and which contained a declaration acknowledging the truth of the contents of that notebook entry which had been written by the defendant;

(3)  a video recorded interview conducted between 13.37 and 13.57 on 2 April 2016, its transcript and the translation of that transcript.

2.The grounds of objection are contained in a document dated 7 June 2018 and signed by counsel for the defendant. 

3.At the conclusion of the voir dire I admitted into evidence all of the above.  I then advised that the reasons for my ruling would be provided in due course.  These are my reasons.

Ground 1 reads—

4.“At the place of the arrest there was no administration of caution by PC 10233 and the defendant had not made any oral admission there.”

Ground 2 reads—

5.“After PC 10233 searched the defendant and found out the defendant was in possession of dangerous drugs, PC 10233 told the defendant, ‘We will arrest you.  If you can arrange a person to bring 250 grams of ice to come here for our arresting him.  We will release you.  You can keep those drugs found on you.’ ”

6.The alleged inducement suggested was that the defendant would be set free and allowed to leave with his cache of drugs.  However, the alleged inducement was not by the defendant linked in any way to the oral admission.  The defendant’s evidence was that this was not made.  It is to be noted that if the jury accepted the defendant’s account or even thought it might be correct then the evidence of the police officers would have to have been rejected; the alleged oral admission would likewise be rejected.

7.The oral admission was wholly dependent upon the veracity of the evidence of the policer officers.  I have heard evidence from three police officers and the defendant in respect of all of these matters.  In summary:

8.The oral admission was alleged to have been made—

(1)  after the defendant had been intercepted, searched and a quantity of dangerous drugs was found in his pocket;

(2)  after which he was arrested for the offence of trafficking in a dangerous drug a caution was administered.  At least two of the three police officers heard—

(a)  the arrest;

(b)  the administration of a caution.

9.The defendant’s account was entirely different albeit that he accepted that he was intercepted, and a search revealed dangerous drugs in his pocket.

10.It was his evidence that he was not then arrested.  He was intercepted at 03.00 not 04.32 as the police officers had testified.  The police officers then suggested to him that if he were to arrange for another person to deliver 250 grammes of methamphetamine hydrochloride (Ice) to where he and the police officers were waiting and that person were arrested—

(1)  he would be allowed to leave;

(2)  he could retain the drugs found in his pocket.

11.The issue to my mind in respect of the alleged oral admission is entirely factual and a matter properly for the jury.  There is not nor is it conceivable that there could be a situation whereby despite the denial by the defendant that he uttered those words that it could be found by a jury that—

(1)  he did say nevertheless those words,

(2)  but that his saying of them was in some way involuntary.

12.This is not the same situation as was considered by the Court of Final Appeal in HKSAR v PANG Hiu-san [2015] 1 HKC 214 at 224:

“… these is no difference between situations where the defendant admits making the admission (oral or in writing) but raises the issue that it was not voluntary, and where he denies making the statement but claims that, if he did make it, he made it involuntarily. In both situations, a voir dire should be held.”

13.In the instant case that issue does not arise on the facts.  Given that the defendant in the voir dire alleged that the police officers behaved in the way he described, were that to be accepted or found to be possible by the jury, then they determine that the disputed oral confession could not stand and would be rejected.  The matter raised in argument was that it was possible that there was inducement or oppression despite the fact that the defendant denied making the oral admission and therefore a specific direction was required in due course.  This was considered amongst other things in PANG Hiu-san[1]at 218 where the court observed:

“We have considered the relevant authorities and are of the opinion that a Mushtaq direction is required in Hong Kong where the circumstances suggest that the statement was, or may have been, induced by oppression, including cases where the defendant denied making the confession.”

14.Insofar as the oral admission in the instant case is concerned these circumstances do not arise.  No question of the admissibility of this oral admission then arises. 

15.Were it necessary, which I believe it is not, for me to rule this admissible I would.

Ground 3 reads—

16.“Inside Tin Shui Wai Police Station, the defendant had complained to PC 10233 that he was very tired and sleepy. The defendant leaned over the table and fell asleep while PC 10233 was jotting down something on the notebook.  He was woken up by PC 10233. PC 10233 told him to copy a declaration to the notebook and sign on the notebook.  The defendant then would be allowed to go back to the cell and sleep.  The contents of the notebook had not been read by the defendant nor he was allowed to read by himself.  The defendant simply followed the order to copy the declaration and sign on the notebook.”

17.In respect of this allegation PC 10233—who was the first witness called by the prosecution in the voir dire—gave a detailed account of what had taken place in respect of this notebook entry.  Integral to the prosecution case was the fact that prior to the preparation of that notebook entry the defendant had been served with a notice to persons in custody (which was signed by him).  Subsequent to the completion of the notebook entry it was signed in several places by the defendant and a declaration acknowledging of its truth written in the notebook by the defendant.  If suffices for the purposes of this ruling for me to say that I was satisfied so as to be sure that the document is admissible in evidence.

18.I determined that this statement was voluntary and admissible.  When the matter is before the jury, however, it will be proper to direct them to disregard the statement if they were not satisfied so as to be sure that it was voluntary in the sense that it had not been made as a result of an inducement held out be PC 10233 that if he signed on the statement, wrote out the declaration he would then be permitted to return to the cells to sleep, commonly described as a Mushtaq direction—see PANG Hiu-san[2]at 217.

19.The admissibility in evidence of the document is a matter for me.  The reliability of the admissions contained in that document are properly a matter for the jury.

20.In respect of the Video Recorded Interview the same considerations apply albeit that the grounds of objection are different.

Ground 4 reads—

21.“At the time the defendant was brought to the video interview room in the afternoon on 2 April 2016, the defendant was suffering from withdrawal symptoms.  PC 3531 had commented that judging from the defendant’s demeanor, ‘his master was coming’ (meaning that he was suffering from the [withdrawal] symptoms).”

Ground 5 reads—

22.“Despite the symptoms of the withdrawal… the police carried on with the interview until interrupted by other police officer outside the interview room.”

23.Like the notebook entry, I determined that the video recorded interview was admissible in evidence as being voluntary.  There was no suggestion of coercion or duress to be considered nor was it alleged.  The issue of its reliability, however, is entirely a matter for the jury to determine.

24.The defendant took part in the video recorded interview.  He was prior to its commencement and during the interview itself asked if he was willing to conduct the interview.  He said he was.  At no time was it suggested that he told the officers that he did not wish to take part in the interview—for whatever reason.

25.The jury should be directed as they will be to consider the reliability of this interview and any admissions in it.  If they thought that the defendant was in a state of drug withdrawal then this should be considered in determining the reliability of any answers given or indeed the whole of the interview.

Mr Martyn Richmond, instructed by the Department of Justice, for HKSAR

Mr Henry Ma, instructed by CM Chow & Co, assigned by the Director of Legal Aid, for the defendant