HKSAR v. Wong Yu-wing

HCCC 375/2017

[2018] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 375 OF 2017

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(Proceedings to 11.58 am not required)

COURT:

The prosecution seeks to rely on utterances made by the defendant at scene and in his video-recorded interview to prove that he had intended to traffic in the dangerous drugs found in Room D, Flat D, 3rd floor, Pak Fa Building, 53 Shek Kip Mei Street by way of selling or sharing with his friends, and would therefore be guilty of trafficking in dangerous drugs.

It is not disputed by the defendant that such an act of sharing might amount to trafficking within the legal definition.

Therefore, if the prosecution can prove beyond reasonable doubt that the defendant did make the admissions, that they were made voluntarily, and that the incriminating part of the contents of the admissions are true, then the defendant would be guilty of the offence of trafficking in the dangerous drugs found on his premises. The fact that they were found on the premises, that they were dangerous drugs and that the defendant’s dealing of them was unlawful is not disputed.

The defendant objected to the production of such admissions on the ground that they were not made voluntarily. More specifically, it is the defendant’s case that police officers had used threats and inducements to cause the defendant to make those admissions in addition to having coached him to say things in the video-recorded interview.

It is also the defendant’s case that he was never arrested or cautioned at scene. He was never shown the contents of any police officer’s notebook. He did not sign that notebook at scene as claimed by the police. The police had used foul language against him at scene, causing him to be scared. The police had demanded the defendant to come up with names of his drug supplier, threatening to get his friend, Ko Chun-wai, involved and charging him in this case if the defendant did not do so.

The defendant was not allowed to answer the numerous phone calls from his girlfriend while they were on the premises, causing the defendant to be feeling isolated and desperate while being handcuffed behind his back shortly after the police had entered into Room D.

Despite the defendant repeatedly asking for food and drinks, he was never given any between the time of the police entering his home and the finishing of the video-recorded interview. The defendant never had anything to eat or drink. It is his case that as a result of this maltreatment, he had no choice but to comply with what the police was asking of him, which was to answer the questions in the interview as they had taught him.

The defendant’s case is also that, prior to the taking of the video-recorded interview, in a small room next to the video-recorded interview room, and also inside the washroom, a police officer taught him what to say later on in the video-recorded interview, suggesting that the drugs were to treat his friends being a reasonable explanation, and that if he did that, then Ko Chun-wai would be released.

It is for the prosecution to prove beyond reasonable doubt that the defendant did make the admission, and that the defendant had said them voluntarily.

Having heard the prosecution witnesses, I find that there are no material discrepancies in their evidence. There is nothing inherently improbable in their evidence and the picture they painted. Despite the meticulous cross-examination of Mr Lam for the defendant, their evidence remained solid. I find that they are all credible and reliable witnesses.

Having heard from the defendant, I find that he is not a credible witness. I note in particular that the defendant had reacted throughout the interview naturally and spontaneously as indicated not just by the outward visual appearance seen of the defendant in the video-recorded interview, but also in the contents of the answers he had given. They simply do not support the defendant’s version of fact that he had been coached shortly before the video-recorded interview and had been told what to say about how he was sharing them.

The prosecution pointed out to the defendant in cross-examination that, it would appear that despite what all the police had done to threaten and induce the defendant, he had not given the police what they wanted in the VRI, that is to say, the name of his drug supplier, a big fish. In fact, the contents of the VRI show the defendant trying to minimise his role in relation to the drugs, stressing that they were all for his own consumption. It so happened that in addition to that exculpatory part, the defendant also explained the Chinese word “讓” by telling the police officer that he would just give it for free to his friends who might want some of the drugs.

It is not clear whether the defendant knew that act of sharing would amount to trafficking or not, although in the course of the defendant giving evidence on the voir dire in his own defence, when asked about the signatures he had put down in the notebook, the defendant did say that had he known that sharing was illegal, he would never have put his signature down on the notebook admitting to its untrue contents.

I would like to deal specifically with the issue of no food and drinks having been offered to the defendant after police entry into the premises and until the end of the VRI because this is not disputed evidence. It is relevant as to whether the defendant was in such a deprived physical condition that he could not be regarded as having taken part voluntarily in the VRI or having given the answers voluntarily.

It is also relevant as to whether I should exercise my residual discretion to exclude the VRI evidence.

As mentioned above, having looked at the contents of the VRI, I do not see the slightest sign of discomfort on the part of the defendant at any time. The defendant himself never repeated his request for food or drinks in the interview. Even if the defendant was being told to say what he had to say, if he was in such a state that he could not have continued or was in dire need of food and drinks, he could still have mentioned it without jeopardising his apparent co-operation with the police officers.

I find also, specifically on this point, that the police officers were telling the truth when they said the defendant himself never made any such request for food and drinks with them.

As such, the lack of food and drinks did not affect the defendant to such an extent that he must be deemed to have taken part in the VRI involuntarily, and also, I find that it is not the case that I have to exercise my residual discretion on this basis.

Mr Lam for the defendant claims that Duty Officer Ho’s credibility had been completely destroyed after the empty plastic bag with the precious blood label was found to weigh 1.8 gramme and not less than 0.1 gramme which the Duty Officer had said was the minimum weight that his electronic scale could weigh. This I cannot agree with.

What the Duty Officer witness did was to decide that the precious blood plastic bag looked too light to be weighed on his electronic scale, so he made a judgment call to not do so. It was not the case that once he decided not to weigh the plastic bag he threw it away. According to the admitted facts and as pointed out by Mr Lam in his closing submissions, that precious blood bag was eventually sent to the government chemist, and a test was conducted, and the contents were found not to be controlled substances.

I do not see how the Duty Officer’s decision to not weigh the plastic bag would destroy his credibility. He might have made the wrong judgment call, but he on the face of it had kept the plastic bag safe and secure until examination by the government chemist.

I also do not see how the fact that some police officers opinionated that the powder found inside the green packet were suspected ketamine, which later turned out to be not, would lead to the possible inference that someone must have emptied the original contents and later replaced with the innocuous substances that were tested.

It is entirely possible that the police officer who saw the powder had made the wrong assumption.

As for why the police dog was able to sniff out the packet, there is no evidence from the dog handler as to when the police dog might react. It is not for me to speculate whether it is possible that the dog picked up the scent of the packet itself or the powder.

Be that as it may, as pointed out above, it is for the prosecution to prove beyond reasonable doubt that the defendant had given his answers and reactions voluntarily. And this I so find.

I am satisfied beyond reasonable doubt that all the out-of-court statements, both verbal and post-recorded including the contents of the VRI, were made freely and voluntarily, without any ill-treatment, violence, threat, inducement, coaching, deception, trickery, oppression or other improprieties whatsoever by whomsoever on the defendant.

I am also satisfied beyond reasonable doubt that there is nothing which makes it appropriate to exclude any of the defendant’s admissions by an exercise of my residual discretion. I rule that all the disputed out-of-court statements may be given in evidence before the jury. That is my ruling and reasons, brief reasons. Therefore, the previous and provisional exhibits are all formally admitted into evidence.

(Proceedings from 12.08 pm not required)

Court adjourns - 12.26 pm

11 June 2018