HKSAR v. Cheung Man Kit and Others

HCCC 236/2018

[2019] HKCFI 2859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 236 OF 2018

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Before:  Deputy High Court Judge Bruce SC in Court

Dates of Hearing: 3 − 5, 13, 14, 17 − 21, 24 and 26 June 2019

Date of Decision:  26 June 2019

Date of Reasons for Decision:  26 November 2019

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REASONS FOR DECISION :

VOIR DIRE ON THE ADMISSIBILITY OF
ADMISSIONS ATTRIBUTED TO MOK CHI YIN,
LAU KWOK YAU AND SO KING YEE

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INTRODUCTION

1.Three of the accused arraigned on this indictment challenge the admissibility of admissions against interest attributed to them.  They are Mok Chi Yin (“D2”), Lau Kwok Yau (“D3”) and So King Yee (“D5”).The numbering relating to this indictment and a related indictment (HCCC 237/2018) has varied substantially over time.  The numbers that I attach to the accused in this case reflect the indictment as it currently stands. Separate voir dires in respect of Mr Mok, Mr Lau and Mr So proceeded accordingly.

2.Each of the three accused provided detailed particulars of objection.

PROCEDURE ADOPTED

3.The procedure adopted was that the evidence relating to the admissibility of the admissions against interest made by Mr Lau was first dealt with. That was followed by the evidence relating to Mr So and followed by the evidence in relation to Mr Mok at the end.  After the tender of evidence in respect of each of these three accused, the submissions on admissibility were made in one go.  The procedures adopted saved a considerable amount of time because there were some common factual matters that concern all three accused.  They shared a high degree of commonality as to the principles in relation to the admissibility of admissions made by accused persons and the principles, which inform the court’s discretion to exclude an otherwise voluntary admission.

4.Counsel for each of the three accused and counsel for the prosecution provided detailed submissions in support of their respective positions.

5.Although all submissions in relation to admissibility of admissions were heard in one go, the proceedings to determine the admissibility of the statements against interest made by Mr Mok, Mr Lau and Mr So were treated as separate proceedings and on no account could the determination in the case of one of these three accused be relevant to the determination of the case in relation to either of the other two accused.

6.On 26 June 2019, I ruled that the admissions against interest attributed to each of these three accused were admissible because I was satisfied beyond reasonable doubt that the admissions were obtained voluntarily and were not the product of oppression.  I was further satisfied that there was no proper basis for me to exercise the discretion proposed in the court to exclude an otherwise voluntary admission against interest.  On that date I undertook to provide reasons for the determinations that I made. It seemed to me that the principles outlined by the Court of Appeal in HKSAR v Okafor [2012] 1 HKLRD 1041, [2012] 1 HKC 427 mandated the giving of reasons in this case.  These are those reasons.

PREVIOUS HISTORY OF THE ACCUSED

7.Each of the accused, when they gave evidence, did not directly advert to having a previous criminal history.  No previous criminal record was tendered for any one of these accused but anyone versed in the minutiae of criminal law would have very little difficulty in concluding that each accused, to a greater or lesser extent was likely to have an extensive involvement in the taking of illicit drugs and have a previous criminal history and, more particularly, a drug history.  Even if there was no specific drug criminal history, the evidence clearly establishes that the accused were well familiar with a range of dangerous drugs.  I mention this fact because I think it is important to make it plain that on no account was that taken into account or held against any of the accused in any way.  With one exception it was for all purposes irrelevant.  It will become relevant to a submission that the reception into evidence of these statements is more prejudicial than probative because it is, when taken together with the general “flavor” of the case a jury might be prejudiced against these accused.

VOIR DIRE EVIDENCE

Mr Mok

8.The principal witness in relation to the voir dire of Mr Mok, Mok Chi Yin, was DPC 5177.  In outline, Mr Mok was arrested on 25 November 2016.  Mok made admissions on arrest and later during the course of six Records of Interview taken by this officer.  There were other officers involved in dealing with Mr Mok but the principal focus was always on DPC 5177.  In addition, the prosecution called a doctor from the Kwong Wah Hospital together with a series of uniformed Police Constables who were responsible for the treatment of Mr Mok on 26 and 27 November 2016.

The complaints

9.The essence of the complaint against the police is that violence was inflicted on Mr Mok by Detective Senior Inspector Charm which was of such force as to break the bridge of the spectacles Mr Mok said he was wearing.  Mr Mok said that the pair of spectacles was never returned.  The destruction of the spectacles had the effect that Mr Mok could not read what was written and, so he said, could not understand what he wrote.  In the latter regard, Mr Mok testified that he had difficulty in writing the Declarations, which are included in each of the six Records of Interview and the Post-Record of a certain notebook entry made by DPC 5177.  On their face, the declarations signify that Mr Mok understood and was willing to make these statements.  He said that he had no such understanding.  Mr Mok testified that was unable to read the entry in the notebook of DPC 5177 or read the Records of Interview and, in effect, signed in blank.  It was suggested by Mr Mok and on his behalf by his counsel that various mistakes and missing out of words from the Declarations meant that it could be inferred that Mr Mok was not copying word-by-word from the pro forma (Exhibit VDP2)as DPC 5177 said but instead wrote them at DPC 5177’s dictation.  If that was true then it demonstrated, contrary to the testimony of DPC 5177, that he knew Mr Mok could not read.

10.Another principal feature of the complaints made on behalf of Mr Mok is that he said that he was suffering from withdrawal symptoms as a result of his addiction to heroin.  Mr Mok testified that at various times while in the custody of DPC 5177 on 25 November 2016, he repeatedly asked for methadone treatment to alleviate his withdrawal symptoms.  He testified that he was told that he would have to wait for methadone treatment until after DPC 5177 had completed the investigation.

11.Mr Mok also complained that he was not the source of the answers which appear in the Records of Interview.  He testified that these were simply written by the police and he was forced to sign not knowing what he signed.

12.It was argued on behalf of Mr Mok that that six statements under caution were done in written form, when they could and should have been done in video-recorded interview form.  It was said that this was a deliberate choice by DPC 5177 to conceal what would have been a visual record of the fact that the accused was going through withdrawal symptoms at the time.  The respective recorded interviews were undertaken between 12:25 pm and 8:33 pm the same day.  The essence of the attack on the admissibility of the admissions attributed to Mr Mok goes to the combination of violence and oppressive conduct by failing to address and alleviate the withdrawal symptoms of the accused and inducement stemming from alleged conversation by person in authority, DPC 5177, in which the interviewing officer said to Mr Mok that he would not receive the methadone treatment he craved until he had cooperated with the police.  In addition, the fact that the accused was deprived of his spectacles was said to be oppressive. Mr Mok also suggested that there were facts and circumstances which would justify the court exercising its residual discretion to exclude an otherwise voluntary admission because of the suffering of the accused brought about by his withdrawal symptoms and because without his spectacles he could not see.  The case for Mr Mok on the voir dire was that the police who dealt with him in relation to the investigatory stage of his case were shameless, venal liars.  It was contended that the prosecution failed to prove beyond reasonable doubt that the caution statements were made voluntarily such that the admissions attributed to Mr Mok were not admissible.

The arrest and search of Mr Mok’s hotel room

13.DPC 5177 told the court that he was part of an operation by the Narcotics Bureau conducted to arrest a number of suspects.  In this regard, he had received a briefing by the officer in overall charge of the operation: Detective Senior Inspector Charm.  The task of DPC 5177 was to intercept Mr Mok.  For this purpose, he went to Portland Street in Mong Kok.  At 8:15 am on 25 November 2016, DPC 5177 intercepted Mr Mok on Portland Street near Shantung Street.  At 8:20 am DPC 5177 commenced to search Mr Mok and found a 1 cm × 1 cm substance wrapped in black which he suspected was a dangerous drug.  He declared arrest on the accused and cautioned him.  In answer to the caution, the accused is recorded as having said that the substance seized from him was left over from what had been sold last night.

14.At the site of the interception and arrest, DPC 5177 said that he asked the address of the accused and was told that it was the Hang Fa Hotel which was nearby.  It was suggested by Mr Mok’s counsel to DPC 5177 and other officers that they also asked for and were given the telephone number of the accused.  The officers involved denied this. Mr Mok told the court that he did give these numbers to the police at the scene of his interception and arrest.  The significance of this issue was that the telephone numbers appear in one of the Records of Interview and the prosecution case was that this was the first time the police had this information which tends to rebut a central contention of Mr Mok that the police wrote down answers in the Record of Interview purporting to come from him but, which in fact, did not come from him.

15.At the scene of the arrest and interception, DPC 5177 agreed that he had become aware that the right leg of the accused was a prosthetic limb.  There was an issue about whether or not this officer saw a wound on the left leg of the accused.  The relevance was that it was put by counsel acting on behalf of Mr Mok that Mr Mok’s ulcerated wound was very painful and this added substantially to the suffering of the accused during the course of his handling by the police and, in particular, DPC 5177. It was suggested that the wound was so painful that it was necessary to obtain treatment for it on two occasions on 26 and 27 November 2016.  The description of the wound by counsel for Mr Mok, which was put to, amongst other police officers, DPC 5177, however, did not quite accord with (1) the valuation of the wound when Mr Mok presented at the Accident and Emergency Department of the Kwong Wah Hospital on 26 and 27 November 2016, and (2) Mr Mok’s testimony on the voir dire.

16.The team of police officers including DPC 5177 and Detective Senior Inspector Charm proceeded then to the address where the accused said he was living.  The officers were cross-examined on the basis that Mr Mok was walking with a limp.  The upshot of these answers were that the officers said that the accused presented as normal and did not appear to be walking with a limp.

17.The police party and Mr Mok arrived at the hotel a few minutes after they left the point of arrest and interception.  They proceeded to a room on the 3^rd floor where the accused said he lived.  The officers all said they took the lift to the 3^rd floor.  The accused, in contrast, asserted that the police wanted to walk up to the 3^rd floor and he proposed that they go by the lift.  On arrival at the room of the accused, the officers testified that the accused told them there was a woman inside the room by the name of Ivy.  The accused said that not only did he tell the police that, but additionally he told them that Ivy was there to receive a mobile phone that the accused had borrowed from her.  The police who testified disagreed with this assertion.  The significance of this will appear later.  They also searched the room and paraphernalia consistent with the consumption of drugs was found.

18.In addition, via both his testimony and via cross examination, the position of Mr Mok was that the police pressed him to answer where “the drugs” were.  It was suggested that Detective Senior Inspector Charm then came into the room and slapped the accused so violently that he broke the bridge of the spectacles that the accused says that he was wearing and that his pair of spectacles was knocked to the floor.  The officers’ version is that the accused never had spectacles during the time he was in the company of the officers and that the alleged act(s) of violence on the part of Detective Senior Inspector Charm never occurred.  The case for Mr Mok was that the spectacles were left inside the room and he was consequently prejudiced in his ability to read clearly in the subsequent post-record of his arrest and Records of Interview. Once again, the police emphatically denied that was true.  When the accused testified, he said that the broken spectacles were left on the vanity unit in the hotel room.

19.Photographs were taken of the room by one of the officers.  Those pictures depict the bed, a stool and the side table to the bed.  One of the pictures depicts the vanity unit.  The pictures were said to be taken by one of the officers but after the main party had left the hotel to proceed to Mong Kok Police Station.  The photograph of the vanity unit does not display any broken spectacles.

The police and the accused go to Mong Kok Police Station

20.DPC 5177 testified that the proceedings at the room of the accused in the hotel took only 10 to 15 minutes and the police and the accused then proceeded to Mong Kok Police Station.  He said that they arrived at the police station at 9:50 am the same day.  A report was made to the Duty Officer in the usual way and the accused was then issued with a Notice to Persons in Custody (Exhibit P102).  DPC 5177 testified that the Notice was shown and explained to the accused at 10:15 am.  At 10:20 am the accused signed the document.  The accused said that a document was shown to him but he could not read it due to the fact that he did not have his spectacles any more.  It is to be recalled that he asserted that those had been broken while at the hotel as a result of violence inflicted on him by Detective Senior Inspector Charm.

21.The accused said he needed spectacles to read and pointed to the fact that he now has prescription spectacles.  In the course of his testimony he tendered the prescription for those new spectacles.  A copy of that prescription was exhibit D2D4.  The prescription was issued in March 2019.  Prior to that, as the accused accepted during the course of cross examination, he had used the proprietary spectacles available at pharmacies.  No information was available as to the magnification of those. The significance of the absence of spectacles in the case for Mr Mok is greater in relation to other matters and is examined later on.  DPC 5177 testified that he briefly read over the Notice to Persons in Custody and said that the accused appeared to read it and it bears both the signature of the officer and the accused.  During the course of cross examination, it was put to Mr Mok that he knew perfectly well what the document said and was aware that he could speak to a lawyer, make telephone calls and so on.  The answers of the accused varied from asserting that he was unaware of these rights to asserting that he was aware of these rights.  I will consider this further in due course.  Each of the officers who testified in the voir dire of the accused said that he was not wearing spectacles at any time.

22.DPC 5177 testified that following that he sealed the pellet of suspected dangerous drug that he seized from the accused.  The accused was then handed over to the Duty Officer for the purpose of arranging lunch.

23.The case for Mr Mok in regard to this was that no lunch was provided and it was suggested that it was indeed curious that lunch would be offered at 10:20 am or thereabouts.  There was other evidence in relation to matters relating to the supply of food and drink for prisoners at the Mong Kok Police Station and Station Sergeant Lau gave general evidence about this topic.  The Station Sergeant did say that it was, perhaps, unusual to have lunch supplied at 10:20 am.  He was unable to produce records to resolve the issue one way or another.  Certainly, his notes in his notebook revealed no record of lunch being provided to the accused.  At a Police Station the size of Mong Kok, I think it would be reasonable to assume that the Station Sergeant had underlings to deal with that kind of matter so the absence of an entry in the Station Sergeant’s notes may not be definitive on the topic.  Sergeant 54337 who was one of the police party who observed the arrest of Mr Mok and later went to the hotel also testified on the topic of lunch.  He told the court that from his general experience it might be a bit early for lunch to be served.

24.The accused was also searched at Mong Kok Police Station.  No complaint was made about that search.

The police and the accused go to Yau Ma Tei Police Station

25.The accused was then taken to Yau Ma Tei Police Station.  The records suggest that the police and Mr Mok departed Mong Kok Police Station at 11:13 am and arrived at 11:30 am.

26.At the Yau Ma Tei Police Station, DPC 5177 made the post-record of the arrest and caution in Portland Street in his notebook. It is common ground that he did so in the presence of the accused.  For the purpose of these proceedings, the notebook was exhibited as P103.  The post-record was written in the notebook of DPC 5177 and was in ordinary Chinese handwriting and the accused asserted that despite the fact that he signed in the notebook he could not read what was written because of the absence of his spectacles.  There is a declaration in the notebook which is in the handwriting of Mr Mok.  He asserted that the characters appearing in his handwriting were dictated because he could not read the pro forma offered for him to copy.  Critically, he said that he could not read what the constable dictated.  This has a significance for the notebook itself together with declarations which the accused wrote in the Records of Interview.  I will return to that topic in due course.

27.For reasons which will become apparent shortly, it is significant that the handwriting of the accused in the notebook is comparatively neat and during cross examination of Mr Mok was conceded to be error free.  The accused asserted that he was unaware of the meaning of what he wrote down and simply wrote on the lines which explain why it was so neat and legible.  His signature which is a “Y” appears at the end of that writing.  Pausing there, the “Y” was used in the subsequent Records of Interview although occasionally he used “YIN”.

28.The effect of the case for Mr Mok was that he could not and did not read what was in the notebook and did not understand what was there and his signature was simply put there because he was told to do that.

29.The accused also signed a receipt (Exhibit P104) for the supply of a copy of the notebook entry and, once again, he asserted he could not read what he signed.

30.DPC 5177 testified that he then undertook the process of taking six written Records of Interview.  The pattern in respect of each of those was that there was a preamble and then a series of questions and answers.  All of that was written by the constable.  DPC 5177 testified that he asked the questions and recorded the questions and recorded the answers to the questions given by Mr Mok.  DPC 5177 asserted that it was an accurate record and the record was signed by the accused as being accurate.

31.In each Record of Interview, interspersed between the preamble and the questions and answers is a declaration written by Mr Mok which purports to be of the effect that he wishes to make a statement and wishes for somebody to write down what he says and that he is aware that he does not have to say anything and whatever he says may be given in evidence. That was written in the hand of the accused.  That is common ground.  What is not common ground is how that came to be written.  I will return to that in a moment.  Each of the six Records of Interview dealt with a different topic.  Of significance to the issues in this voir dire was why the officer chose to make six Records of Interview as opposed to simply one and probably more pertinently why he chose to use the perhaps old-fashioned form of interview—the written Record of Interview—as opposed to a video recorded interview.  The case as put to DPC 5177 was that the use of the Record of Interview as opposed to the video recorded interview was to conceal what would have been obvious in a video recorded interview that the accused was at the time experiencing withdrawal symptoms and this would be, in effect, a bad look on a video recorded interview.  The constable denied such a suggestion and denied that it was apparent that the accused was going through any kind of physical discomfort whether that discomfort was associated with withdrawal symptoms or otherwise.  Paraphrasing a large amount of evidence to DPC 5177, the accused looked fine.  On the other hand, the accused said that he was already suffering withdrawal symptoms by the time the post-record came to be written and this was demonstrably so.  He told the court that he became progressively worse during the course of the process of these interviews which lasted from 12:25 pm to 8:33 pm on 25 November 2016.

32.The accused testified that he repeatedly asked for a pause in the Records of Interview so that he could consume methadone to alleviate his withdrawal symptoms.  He described how most or all of the process by which the six Records of Interview was being taken that he had his head on his hands lying on the table in the interview room.  Indeed, he says that he wrote the various declarations which appears in each of the Records of Interview while lying with his head on his left arm with his head inclined to the right so that he could write as commanded the declarations which appear. (Although it was not specifically said in evidence, I proceed on the basis that the accused was right-handed.)  Pausing there, one of the inducements asserted by Mr Mok was that DPC 5177 told him that if he hurried up and completed the Records of Interview he would be given methadone.

33.The position of Mr Mok in relation to these six Records of Interview is that apart from the three declarations written in each of the six Records of Interview he contributed nothing to the process.  In particular, he said that DPC 5177 wrote not only questions but also the answers and the accused did not give any of the answers to the constable.  In short, the position of Mr Mok was that the whole thing was written up by DPC 5177 without any material participation on his part with the exception of the declarations.

34.One test of the assertion by the accused that he was not in any way the author of the answers which are recorded as being given by him is to ask whether there was anything in the content of the answers (or, depending on your position, the purported answers) which DPC 5177 wrote in the Records of Interview which would have been or was likely to have been outside his knowledge at the time of writing.  In this regard, the prosecution closely cross-examined Mr Mok on the detail of an answer he gave in his 2^nd Record of Interview which is exhibit P106.  In that Record of Interview, in question and answer number 8 the accused was asked about Ivy (who was the person found in his room at the hotel where he was taken shortly after the interception and arrest in Portland Street).  In this context, it is perhaps helpful to recite the question and most of the answer which is as follows:

“Question (8): Would you talk about in detail who Ivy is, (and) why she was present in the room?

Answer (8): Ivy is just an ordinary friend, who was introduced (to me) by friend(s) 4 to 5 months ago. I bumped into Ivy in Mong Kok a few days ago. At the time, I didn’t have a phone for use, so (I) asked her to lend me her phone for a few days. Then, on the day before yesterday, she urged me to return the phone. Thus, I told her to come to the room I lived (between) 4 a.m. (and) 5 a.m. today, to get back the phone from me. Then, Ivy arrived at sometime past 4 (a.m.). Coincidently, I had to go out to go back to the rear alley of San Kwan Ho Restaurant on the opposite side to sell (“)Sze Chai(”). [The balance of the answer is not relevant for present purposes.]”

35.It is to be recalled that there is competing testimony as between DPC 5177 and others in the police team who were present and Mr Mok as to what was said about Ivy prior to the entry into the room at the hotel where Mr Mok stayed had.  According to the constable, Mr Mok said that there was a person called Ivy inside the room.  When tested about what was said by Mr Mok on this topic, DPC 5177 said that he told them that there was a woman in the room by the name of Ivy and nothing else.  According to Mr Mok, Mr Mok said that Ivy was staying in the room and that she had come to collect her mobile phone.

36.Two matters arise out of that.  First of all, there was no mention in the testimony of the accused of any details of how he knew Ivy or had come across her in the days preceding the arrest. The fact that the 8^th answer supplies that information is either a very lucky guess on the part of DPC 5177 or it came from the mouth of Mr Mok.  Further, so far as the topic of why Ivy was present, the officer chose to write down Mr Mok’s version as opposed to his own. 

37.Further, on the topic of what was known to Mr Mok and not known to the police and which appeared in the Records of Interview there was cross-examination about phone numbers written in the Records of Interview.  There was basically a dispute about whether the accused had previously told the officers about the phone numbers of the phones found in his possession at the time of his interception.  The accused in cross-examination said in any event it would be trivial to obtain this information from the phone by switching it on and making appropriate enquiries.  In re-examination Mr Mok testified that there was no passcode on the phone.  The accused also made the point in answer to this cross-‌examination that police had his identity card number and could easily check the registered number from the phone company.

38.As I have already foreshadowed, the accused in addition to denying that he supplied the information recorded in the answers to questions in the Records of Interview, accepted that he wrote the declarations which appear in each of the Records of Interview.  In each Record of Interview, there is a declaration at the outset which purports to be copied by the accused.  They follow a pro forma which was said to be supplied by DPC 5177 which is in Chinese and is to this effect:

“I, Mok Chi Yin, am willing to make a statement. I want someone to write down what I say. I know that I need not say anything unless I wish to do so and that whatever I say may be given in evidence.”

Mr Mok asserted that, in the absence of his spectacles, he could not read the Chinese on the pro forma and so the constable dictated that to him.  The position of Mr Mok is that it can be seen from his handwriting that it is an error-ridden shambles.  Mr Mok testified that he simply copied out what was dictated not knowing what it was that the officer actually said. In addition,he told the court that he was writing this while resting his head on his arm on the desk in the manner I have already described.

39.The relevance of the issue of the declarations written by the accused is said to demonstrate that the accused did not have his spectacles at this time and could not read and therefore could not understand what was being written in the declarations.  What then arises from that is that the explanation for him not having his glasses is that this was as a result of police misconduct via the assault on him which resulted in the bridge of his glasses being broken.  That further reflects the alleged total uncaring and inconsiderate treatment and, pertinently, oppression of Mr Mok by the police. Further, the handwriting in the declarations written by Mr Mok and, in particular, the errors displayed are said by counsel representing Mr Mok to reinforce the contention of Mr Mok that the declarations were dictated as opposed to copied which is relevant to his inability to read due to the absence of his glasses and to demonstrate that not only was he going through withdrawal symptoms but those withdrawal symptoms were becoming progressively worse.  The decline in the standard of the handwriting of the accused is also, on the case for the accused, was contended to be evidence of his deteriorating condition due to withdrawal.  Obviously, the contention that he was not only suffering from withdrawal but that it was getting worse was evidence of oppression on the part of the police.  Further, the repeated requests for methadone treatment which was refused until the Records of Interview were completed is evidence of inducement and oppression. Finally, the relevance of this aspect of the matter is that the condition of Mr Mok being unable to read and going through suffering as he described is such as to result in an unfair trial if the statements were admitted into evidence.

40.What is clear from observing the declarations is that in contrast to the declaration written in the post-record the handwriting is, in varying degrees, worse than the handwriting of the accused in the declaration written in the post-record. There are also errors and crossings out.  In the course of the testimony of Mr Mok, the Court was taken through each of the declarations in the six Records of Interview in detail and the characters which were said to be illegible or in error were pointed out one by one.  Further, the accused pointed out in similar detail the omissions from the declarations in each of the Records of Interview.  In this process, comparison was made with the Chinese characters in the pro forma to underline what an error-ridden shambles Mr Mok’s counsel contended that the whole thing was.  In the course of his examination in chief, the principal focus of the detail of these problems was on the three declarations in the first of the six Records of Interview. Essentially the same point was made with the declarations in the other five Records of Interview was made but in less detail.  On no account could any criticism be levelled at the presentation of the accused in this regard.  The message was abundantly clear what his points were in relation to this.  Although each declaration was, according to the accused, read out a total of six times (there being six Records of Interview) he testified that he did not understand what was being dictated to him.  In closing submissions counsel for Mr Mok reviewed the matter in detail but on no account the same degree of detail that was seen in examination in chief of Mr Mok and the cross-‌examination of DPC 5177.

41.In the cross examination of Mr Mok, a number of points were made about the handwriting issue.  First of all, it was contended that it was virtually impossible to write down a character in Chinese without understanding that character and making a choice as to which character to write down.  Pausing there for a moment, the accused accepted on at least two occasions that he was ordinarily capable of writing down the correct character for the words in the pro forma.  It was also contended that even a character crossed out involves an element of an act of recognition of what it is that was crossed out.  However, given his withdrawal symptoms and the progressive worsening of those, he was not, on this occasion, able to take in what was being dictated to him.

42.The case for Mr Mok was that many of these characters were virtually illegible.  A close examination by Ms Emma Tsang for the prosecution of these characters in her cross-examination was to the effect that in relation to the first Record of Interview, some of the characters which were said by the accused to be illegible were, on closer examination adequately formed even if not perfectly so. The accused was closely cross examined in relation to the first declaration in exhibit P105 which is the first Record of Interview.  Pausing there for a moment, it must be clearly understood that I am functionally illiterate in Chinese.  However, owing to the care in which this specific issue was presented by counsel for Mr Mok, Mr Y M Liu and by Ms Tsang for the prosecution, I am confident that I understand the points that were being made and which were relevant for the determination of this aspect of the voir dire.  In the first declaration in P105, which can be seen in the documentary record at page 1370 of the record at the bottom there are a number of errors pointed out and an example of that is the word “gong” which means “speak” or “to speak”.  That character is as follows: “讲” (or "").  I have also sought to reproduce in a pictorial rendition a copy of the passage written by the accused.  It is to be noted that the characters in the first row are not relevant to this point.  I will return to the significance of the 1^st character in a moment.  The relevant passage of page 1370 is as follows:

43.Concentrating for the moment on the first declaration in the first Record of Interview, in so far as the 4 uses of “gong” that is “讲”, it can be seen once on the 2^nd line, once on the 3^rd line and twice on the 4^th line.  Mr Mok was closely cross examined by Ms Tsang on these characters.  The case for Mr Mok was that they are illegible and this is symptomatic of his condition and the continued deterioration of that condition.  The effect of the cross examination was although they were not perfectly written they are clear enough as the shape and the form remain.  There was something of a retreat in the answers given by Mr Mok in relation to this issue.

44.Staying with the declaration in exhibit P105 to which I have just referred, there are two characters on the top line 1 of which I have underlined as can be seen from the picture.  The point being made by the accused was that these characters are the same and what should have been said was “作供”, which, if written properly, means to testify.  The correct version which should have been written and which appears in the pro forma is “作供”.  What the accused had written down instead, was “供供”.  If you use the same characters, so said Mr Mok, it does not mean “to testify”.  It means nothing. According to him, it is just, in effect, babble.  The point made in cross examination on this specific topic is that in Chinese, context is everything and although it is an error, it was clear enough what was being communicated.  A further point which was made is that on the 3^rd line of this passage one sees a somewhat shaky horizontal line which is, relative to the other characters on that line, somewhat elevated.  This was said by the accused in his examination in chief that this character so placed is meaningless and the result is that the phrase meant to him “bud ding” (不定). On that basis, so said Mr Mok, that phrase meant “not allowed”.  That, of course, radically alters the meaning of the sentence in the pro forma.  On the premise that the horizontal line was meaningful (which would have required it to be in about the middle of the space occupied by that character) then it would have represented “bud yat ding” (不一定) which means “may be” or conveying the notion of a choice.  The big issue, if it can be so described,was the placement of the horizontal line.  The horizontal line, properly placed,is “yat” (一) which is, of course, one.  The position of Mr Mok seem to be that given the placement of the character it was meaningless and his point was constructed upon that basis.

45.As has been noted already, the position of Mr Mok was that he was simply writing up what was being dictated, either character by character or phrase by phrase.  On the premise that the “yat” (一) character is simply misplaced on the line of characters, the phrase would accurately replicate the pro forma.

46.Further, the accused pointed out a number of occasions that there were blanks where there was no character or where a character was crossed out.  In addition, the accused asserted that some characters that he wrote down were homophones which, so he said, was evidence that this was dictation and that the accused was writing down what he heard as opposed to what was on the pro forma.  Some of the characters are actually meaningless.

47.In cross examination, Mr Mok ultimately agreed with Ms Tsang that the number of occasions in which there was a missing character was, taken over the whole of the six Records of Interview, a comparatively rare event.  That was also the position in relation to crossings out.  The accused accepted that there were only one or two homophones in the whole of the set of declarations in each of the six Records of Interview.  The overall proposition put to the accused by the prosecution in cross examination was that, albeit perhaps imperfectly, the meaning of the declarations was clear and were well capable of being understood by the accused.  Further, the cross examination was premised on an acceptance of the dictation mode of writing down and made the point that having heard the individual declarations six times he must have realised what they meant.  This the accused denied.

48.In addition to this, it is common ground that the handwriting of Mr Mok in the declarations is generally poor and sometimes worse than that.  Against that, there are occasions where the handwriting is substantially better than in some of the other examples in the Records of Interview.  An example of this substantially better handwriting can be seen in the first declaration in exhibit P108.  That is, in comparative terms almost as good as the handwriting undertaken by the accused in the record of interview.  In fairness, by the time that one gets to the 2^nd and 3^rd declarations in the first Record of Interview, the handwriting has, to some extent, deteriorated.

49.In exhibit P108 if one looks at the 3^rd declaration the first character on the last line looks, superficially, like a “B” ().  However, while that is, of itself, meaningless in Chinese, what it is both in context and in comparison to other similar entries, the character is the character for “and” (及).  The allegedly defective character is simply missing a lateral stroke ().  If that is right then while it is, strictly speaking meaningless, if it is viewed as the character for “and” but without the lateral stroke, it can be viewed as the writer of that character being somewhat lazy.  The “B” character is seen in the next photograph of part of exhibit P108:

50.In the second picture the last circled character is Mr Mok writing the “and” (及) character correctly:

51.In exhibit P110 which is the last of the six Records of Interview, in the declaration at the beginning of the Record of Interview, on the 4^th line, 4^th character we see the word “gong” (講) but in a more faithful rendition of a traditional Chinese character: (It is to be recalled that the use of “gong”in the first Record of Interview was in the mode of the simplified character more commonly used, for example, in other parts of the People’s Republic of China.)

It is fair to note that the handwriting of this particular declaration is also an example of the slightly better-quality handwriting by the accused.  Strangely, by the end of that Record of Interview, the handwriting had deteriorated somewhat.

52.Another example of the wrong use of characters relied on by Mr Mok concerned the use of the character “duk” (讀) which is the 5^th character on the 3^rd line of exhibit P105 (page 1375):

That character means “read”.  The character which was actually written is a simplified Chinese character.  What should have been written, according to the pro forma, is “chung bo” (增補) which means to add.  In his testimony the accused was not asked and did not provide an explanation for why he wrote that character.  Curiously, in other Records of Interview he wrote the phrase correctly.  An example of that may be seen in the declaration in exhibit P107 in the 3^rd declaration on page 1417 and it is the 2^nd line of the 2^nd declaration 5^th character from the right-hand side.  See also exhibit P109 which is the 5^th Record of Interview.  In that the character appears in the 2^nd declaration on page 1447.  It can be seen in the 2^nd line, last character.

53.Needless to say, there were other examples of errors pointed out by counsel for Mr Mok.  The obvious point of this exercise from the perspective of Mr Mok was (1) to demonstrate that he was without his glasses and was so badly affected by withdrawal symptoms that he was unable to properly write, and (2) that contrary to the testimony of DPC 5177 this was the accused writing dictation as opposed to copying a pro forma. The implicit suggestion was that had he been copying as opposed to writing at dictation would not have made the errors that he did.  Of course,in cross examination the prosecution made the point that the vast majority of characters in each of the declarations in each of the Records of Interview were correct even if the handwriting was less than clear.

The accused returns to Mong Kok Police Station

54.Following the completion of the six Records of Interview, the accused was taken from Yau Ma Tei back to Mong Kok Police Station. He was there incarcerated.  Although it is common ground that the accused made no request for methadone treatment to the duty officer when he arrived back at Mong Kok, he testified that he did ask an unidentified uniform police officer in the cell area of the Station to be given methadone.  He says he was informed by that officer that it was too late to go for methadone treatment by the time he asked the officer.

55.On the day following his arrest, 26 November 2016, upon the instructions of the Duty Officer at Mong Kok Police Station, Mr Mok was taken for methadone treatment and was taken to the Kwong Wah Hospital for medical treatment.  At 9:55 am, he was escorted to receive methadone treatment.  There is a slight confusion in the evidence about which methadone clinic Mr Mok was taken to.  On balance it looks like he went to the Sham Shui Po Methadone Clinic at the Sham Shui Po Public Dispensary at 137 Yee Kuk Street in Sham Shui Po.  Nothing turns on the precise identity of the clinic.  The Detained Person Movement Record, Exhibit VDP3, and the testimony from Sergeant Lau corroborate that Mr Mok was taken to Robert Black Health Centre for methadone treatment.  Police records, which were unchallenged, have Mr Mok arriving at 10:06 am and departing at 10:35 am.  The escorting officer, PC 17155 said that he personally witnessed Mr Mok’s consumption of the methadone.  He testified that he did not notice anything about the health condition of Mr Mok.  However, the officer said that had there been any complaint or observation on the part of Mr Mok he would have recorded it.  He considered it significant that there was no record.

56.Later in the day, PC 33667 escorted Mr Mok to the Kwong Wah Hospital.  He arrived at 11:51 am (which accords with the hospital records (Exhibit D2D1) that were produced by Dr Chan Tung Ning of the Accident and Emergency Department of that hospital).

57.PC 33667 testified that Mr Mok was taken by ambulance, but was able to walk to the ambulance.  He asserted that he was not carried on a stretcher nor in a wheelchair.  The records show that Mr Mok was discharged at 4:42 pm.

58.Dr Chan testified.  He was called by the defence but by consent was interposed during the testimony of Detective Senior Inspector Charm who was in the course of testifying for the prosecution.  Dr Chan is a well-qualified and highly experienced doctor who practised at the Accident and Emergency Department of that hospital and had done so for something of the order of 20 years.  He produced the hospital records relating to the treatment of Mr Mok.  Dr Chan was not the treating doctor on 26 November 2016.  However, he was able to assist the Court with a review of the hospital notes.  The hospital notes reveal that the principal focus of the medical staff was the wound on the left lower inside leg of Mr Mok.  The wound was bandaged and although Dr Chan was not himself the treating doctor on this date, he testified that there was no record of Mr Mok suffering any pain from the wound as shown in the hospital notes.  There was certainly no suggestion of Mr Mok suffering from withdrawal symptoms from either heroin or methadone on his attendance at the hospital.  Hospital notes record that Mr Mok was an intra-venous drug addict.  The wound was diagnosed as chronic left leg venous ulcer.

59.Dr Chan was able to assist the court with an exposition of his extensive experience of dealing with drug addicts present at the Kwong Wah Hospital who were showing withdrawal symptoms or suffering from a drug overdose.  His experience and training compel the conclusion that he is an expert in this field.  His opinions are relevant and necessary to the determination of possibility of withdrawal symptoms being suffered by Mr Mok.  His opinions in this regard are admissible as expert opinions.  Dr Chan described withdrawal symptoms and overdose symptoms.  As the principal focus of the present proceedings is in relation to the contention by Mr Mok that he was suffering symptoms of withdrawal during the course of the Records of Interview conducted by DPC 5177 on 25 November 2016, Dr Chan’s testimony in relation to the hospital notes were not directly relevant.  The testimony relates to diagnosis of left leg venous ulcer, but not any signs of withdrawal symptoms.  Nonetheless, he testified that there were no symptoms similar to withdrawal symptoms on 26 November 2016.  Pausing there for a moment, it is worth noting that when Mr Mok was admitted to the Kwong Wah Hospital the following day, 27 November 2016,he presented with symptoms of heroin or methadone overdose (as opposed to withdrawal).  The hospital notes record that Mr Mok asserted that he had methadone at 4:00 pm the same day.  I will return to that topic in a moment.  Dr Chan was himself the treating doctor when Mr Mok presented on 27 November 2016.

60.In the experience of Dr Chan, the symptoms commonly associated with withdrawal from either heroin or methadone are dizziness, abdominal cramps and sweating.  It is very rare, so Dr Chan said, for the patient in withdrawal to have a fever but that is not unknown.  He made the same point about patients lapsing into unconsciousness as a result of withdrawal. Other symptoms might include loss of appetite, tears, dryness of the mouth and mucous discharge.  Dr Chan made it plain that much will depend on the patient himself as to what symptoms are presented and the timing of the last ingestion of heroin. He made the point that many of these symptoms which may appear to be consistent with withdrawal from heroin may also occur due to other causes or as complications.  He made the point that heroin is a faster acting opioid and methadone is a slower acting opioid. He testified that methadone withdrawal is slower to come about and is comparatively mild compared to heroin withdrawal.  He said that the onset of heroin withdrawal is comparatively quicker and severe.  He also spoke about the usual treatment of the patients showing withdrawal symptoms and said that unless the patient presents with acute symptoms, he would be referred to one of the methadone clinics.  He made the point that Kwong Wah Hospital does not prescribe methadone and indeed the pharmacy at the hospital has no supplies of that drug.  The point he was making is that treatment for heroin or methadone addiction is rarely carried out in this hospital and more specialist treatment is often preferred.

61.On 27 November 2016 (which is, of course, two days after the taking of the admissions found in the Records of Interview), Mr Mok was again taken to a clinic for methadone treatment.  PC 54880 testified (which,again, was unchallenged) that Mr Mok was taken to a methadone clinic, at 9:25 am and left 25 minutes later.  PC 54880 was not able to specifically say that he saw the accused actually consume methadone at this clinic.

62.PC 18750 who was also attached to Mong Kok Police Station testified that he took Mr Mok to the Sham Shui Po Public Dispensary at 4:22 pm later that day.  He testified that they arrived at the clinic at 4:39 pm and indeed witnessed the consumption of the methadone.  At 4:52 pm, Mr Mok was taken back to the police station.  These corroborate with the Detained Person Movement Record for Mr Mok.  At 5:30 pm, another police officer, PC 18848 escorted Mr Mok to the Kwong Wah Hospital. Mr Mok was taken by an ambulance and PC 18848 testified that the Accident and Emergency staff saw Mr Mok after he arrived. That accords with the hospital notes which have Mr Mok arriving at 5:41 pm.

63.The treatment of Mr Mok at the hospital on 27 November 2016 had two principal facets.  The first was further treatment for his wound on the left lower leg on the inner side.  It was in fact Dr Chan who treated Mr Mok on this occasion.  He testified that the wound was palpated and not found to be painful.  He confirmed in cross-examination that if there was pain it was certainly not serious pain.  He expressed the opinion that a wound of the kind presented by Mr Mok was one which would have existed for a number of months.  The patient also presented with the appearance of being dull looking and symptoms of epigastric pain and vomiting.  Dr Chan suspected that Mr Mok had overdosed on methadone because of the manner in which he presented.  Indeed, he prescribed Narcan, which is the recognised treatment for opioid overdose and this alleviated some of the symptoms of Mr Mok.  These were all recorded on the hospital notes.  Ultimately, at about 10:00 pm that night Mr Mok was admitted to the hospital in relation to his epigastric pain and vomiting.  The other aspect of the treatment of Mr Mok at the hospital on the 27^th was the wound on his left leg.  For that Dr Chan prescribed Augmentin, which is an antibiotic.  There was certainly no suggestion of Mr Mok presenting at the Hospital with withdrawal symptoms on the 27^th.

64.Mr Mok testified in the voir dire.  I have already referred to aspects of his testimony.  His testimony in relation to the manner in which he was dealt with on 26 and 27 November generally accord with the testimony of the prosecution witnesses and Dr Chan.  In one material respect there was a difference which may be of significance.  In relation to the ingestion of methadone on the 27^th, the record shows that Mr Mok was taken to a methadone clinic in the morning of the 27^th and later in the afternoon about an hour preceding his attendance at the hospital.  It appears from the testimony of Mr Mok that he took methadone on both occasions.  However,it was specifically put to the officer who took him to the methadone clinic on the morning of the 27^th that he did not ingest methadone.  The testimony of Mr Mok was that he did so.  If the ingestion was in the afternoon that might account for why Dr Chan (personally treated Mr Mok on the 27^th) suspected that Mr Mok was suffering from an overdose of methadone when he presented in the afternoon of the 27^th.  It almost goes without saying but it is perhaps relevant to explicitly make the point that an overdose is the exact opposite of any withdrawal symptoms.  That said, withdrawal symptoms—if they ever occurred on the 27^th—have no relevance to the issue is litigated on the voir dire.

Mr Lau

The arrest of Mr Lau

65.The prosecution called DPC 3998 Do Rego Keith. He was an officer in one of the teams in Narcotics Bureau, the Hong Kong Police Force. On 25 November 2016, the officer was on duty in Portland Street in Mong Kok.  The purpose of his attendance at that address was to look for and, if found, arrest Mr Lau.  He testified that at around 8:40 am he saw Mr Lau coming out of a restaurant at 202 Portland Street.  The accused was arrested and cautioned for conspiracy to traffic in dangerous drugs.  I will talk about the content of the arrest and caution and the response of this accused when I deal with the post record later on.

66.At the time that this officer was in Portland Street he was in the company of Senior Inspector Chang and DPC 58728 and DPC 58145.  These other officers were not immediately together with DPC 3998 but were in the near vicinity.  They were in the vicinity and came up to DPC 3998 either after the arrest or as the arrest was proceeding.  The version of Mr Lau was that, contrary to the testimony of DPC 3998, he was inside the restaurant.  Mr Lau also asserted that there was no caution and no reply.

Mong Kok Police Station

67.Mr Lau was searched and three mobile phones and just over $1000 is found in possession.  He was taken to the Mong Kok Police Station. DPC 3998 issued a Notice to Persons in Custody in this case was exhibited as P71.  The document outlines in written form some of the rights of an accused person.  DPC 3998 testified that he explained contents of the rights articulated in the Notice and gave the Notice to Mr Lau for him to read.  DPC 3998 testified that Mr Lau appeared to read the document.  The document was signed by the officer and Mr Lau at 9:25 am.  In contrast, Mr Lau asserted in cross examination that the Notice was never read or explained to him at all and that he did not read it.

68.Following that, DPC 3998 undertook process of preparing what is known as a post record.  This is an entry in the notebook of DPC 3998 to record the arrest and caution and response of the accused.  The notebook entry was exhibit P72.  It records that at 8:40 am the accused was arrested and cautioned the conspiracy to traffic in a dangerous drug between 24 October 2016 and 25 November 2016 in Portland Street.  The notebook records that the accused was cautioned and the response recorded in the notebook is “I just worked for somebody as a lookout for a daily wage.”  DPC 3998 recorded that he then read over contents of the notebook so far and invited the accused to sign after he had read it.  The notebook records that Mr Lau declined to do so.  In the context of the preparation of the post record, counsel for Mr Lau submitted that the constable already knew that Mr Lau was a drug addict and had been to DATC.

69.DPC 3998 testified that he then asked the accused to write down in his own and writing a declaration.  The contents of the declaration are:

“ I have read this statement. I know that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.”

The signature of Mr Lau and DPC 3998 follow from that.  Mr Lau then signed a receipt for a copy of the notebook entry.  That receipt was signed as exhibit P73.  In his testimony, Mr Lau said that he was not aware of the rights contained in this document.

The search of Mr Lau’s residence

70.Later on that morning, DPC 3998 took Mr Lau to a flat in Sham Shui Po which was said to be the residence of Mr Lau.  The object of this was to conduct a search at these premises. DPC 3998 testified that they left Mong Kok Police Station at 10 am.  He said that he went in company with Senior Inspector Chang, DPC 58145 and DPC 58728.  It appears that the residence of the accused was a small room which was part of a partitioned off old Chinese style flat in Sham Shui Po.  In cross examination DPC 3998 says that the journey took about 20 minutes.  It was also put to this officer that the house search was extensively longer in duration than testified.  The reason for this was that, as Mr Lau testified, Mr Lau was going through withdrawal symptoms at the time.  He asked for methadone to alleviate his symptoms and he was told that if he cooperated “everything was negotiable”.  DPC 3998 rejected such suggestions.

71.It was put to DPC 3998 and the other officers to be testified as to being present in the house search that Mr Lau was actually permitted to take drugs during the course of the house search and indeed DPC 3998 had actually disposed of the needle by Mr Lau for this purpose.

72.DPC 3998 testified that nothing suspicious was found at the premises and they then left the premises and went to Sham Shui Po Police Station.

The VRI

73.At the Sham Shui Po Police Station, a video recorded interview was undertaken.  Prior to the interview, it was alleged by Mr Lau that the topic of methadone was raised again and the essence of the allegation was that Mr Lau would get methadone if he cooperated.  He was, in essence, told what to say in the video recorded interview.  The video recorded interview was a relatively short one.  During the course of the interview, Mr Lau was responsive to questions and his answers appeared to be relevant to the subject matter of the questions.  Mr Lau testified that the reason he presented as comparatively alert and awake and that his brain was not in a muddle was because the police had permitted him to take drugs earlier on at his residence during the course of the search.  Indeed, he went so far as to say that he cooperated with DPC 3998 because that officer had allowed him to take white powder.

74.There is evidence in the police records that Mr Lau was taken to get methadone.  This can be seen in the police movement record which was exhibited as D3D1.  That shows that on 26, 27 and 28 November 2016 Mr Lau was indeed taken to a public methadone centre.  There is no record in the police movement record that Mr Lau was taken for methadone treatment on the date of his arrest.  That is so even after he was back in the custody of the Duty Officer and, more pertinently, the custody of DPC 3998 and his team.  Certainly he was back in the custody of the Duty Officer at a time when the methadone clinics in the area were open.  That may carry with it the implication that there was no request and that in turn carries with it the implication that Mr Lau did not feel the need for methadone at the time he was incarcerated after submitting to the video recorded interview.  That in turn carries with it the possible implication that he was not suffering withdrawal symptoms.

Mr So

The arrest

75.Mr So King Yee is D5 in these proceedings.  On 29 May 2017 he was arrested by PC 10895 outside a methadone clinic.  The timing of the arrest is that it appears it was just before the clinic was to open.  The basis for the initial arrest was unrelated to the proceedings the subject of this indictment.  However, after PC 10895 checked the identity card of Mr So it became apparent that he was wanted for this case and another unrelated case.

76.Mr So was arrested and cautioned for the present case.  He remained silent.  Mr So said that he was at the methadone clinic because he needed methadone and was in the habit of coming to the clinic early in the morning so that he could go on to his job as a cleaner.  He said that he asked the officer to wait until the clinic opened so he could obtain his methadone.  The officer refused this request.  In cross examination it was suggested that he was carrying his working clothes — a uniform of a cleaning company — in a bag.  The officer agreed there was a bag but that is as far as it went.

77.It was suggested that the officer appreciated that Mr So was likely to be a person in the vicinity of the clinic because he wanted methadone.  The officer said, however, that at no stage did he request assistance in receiving methadone.

Wong Tai Sin Police Station

78.Mr So and PC 10895 went to the Wong Tai Sin Police Station.  There, he was given a Notice to Persons in Custody (exhibit P156) which PC 10895 said that he appeared to read.  The officer said that he also read it over to Mr So and their signatures appear at the bottom of that document.  In cross examination it was alleged that the document was not read over and Mr So did not read it. The officer testified that to him it appeared that Mr So had no difficulty in reading the document.

79.PC 10895 then undertook the preparation of the post-record of the caution administered at the methadone clinic.  That was exhibit P157.  The officer said that Mr So signed the post record and made the usual two declarations in that document which were also signed by him.  The officer said that in due course a copy of the post record was given to Mr So and he acknowledged receipt of that copy in exhibit P158.

Mr So is taken to Tseung Kwan O Police Station and interviewed

80.Officers of Narcotics Bureau learned of the arrest of Mr So and proceeded to Tseung Kwan O Police Station to interview him.  The officers arrive shortly before 1 pm.  DSPC 34383 was one of the team of officers who went to that Station for that purpose.  He took charge of Mr So and issued a further Notice to Persons in Custody.  DSPC 34383 testified that he read the notice to Mr So and allowed him to read it as well.  The officer testified that Mr So appeared to understand the document.  Both of them signed the document which is exhibit P159.

81.The accused was then taken to a room at the Tseung Kwan O Police Station where DSPC 34383 conducted a Record of interview with Mr So.  This is exhibited as P160.  The record of NWS recorded as commencing at 1:08 pm and concluding at 3:10 pm it proceeded in question and answer form.  DSPC 34383 testified that the accused wrote a declaration which appears on page 3 to the effect that he wished the officer to write the questions and answers and recording that he was aware that he needs not say anything unless you wish to do so and that whatever he may say may be given in evidence.  The Record of Interview then proceeded and on its face has the accused admitting that he participated in the sale of dangerous drugs on a number of occasions.

82.DSPC 34383 were cross-examined on the basis that Mr So was taken from the cells in Tseung Kwan O Police station to the interview room in handcuffs.  This was denied by the officer although he said he had his handcuffs with him.  The officer made the point that Mr So it is an older man and it was his judgement that handcuffs were unnecessary in the circumstances.  It is common ground that Mr So is aged 67.  It was alleged that this officer and another were involved in a series of very serious assaults on the person of Mr So.  The assaults were such that they reduced Mr So to tears and he was frightened and shaking.  Mr So requested methadone and was told that he would get that after the interview if he cooperated.

83.Mr So testified that the whole of the Record of Interview was written out by the police and he was forced to sign it and was tricked into writing the declarations which appear in the Record of Interview in his hand writing.  It was said that he was unable to write many of the characters in the declaration because he did not have his glasses.  It was said that that the officers displayed on the smart phone of one of the officers.  The display was in magnified form so that the accused could copy.  Mr So testified that he asked for methadone and was told to cooperate and then he would get methadone.  This was an acute issue said Mr So because he was in withdrawal symptoms.  Each of the officers denied that they noticed any manifestation of such symptoms and denied that they had agreed to provide methadone in exchange for cooperation.  They specifically denied that they had told Mr So that he could have methadone in exchange for cooperation.  Indeed, Detective Senior Inspector Charm who was the officer leading the police party on this day said that had he been aware that there was a request for methadone it would have been attended to immediately.

84.During the course of the cross examination of DSPC 34383, a good deal was made of the fact that in the course of the Record of Interview there appears questions about to photocopied photographs which are annexed to the Record of Interview. It was suggested these were never shown to Mr So during the course of the Record of Interview.  Question and answer 15 deal with the two photographs.  That is the last question in the Record of Interview.  Much was made of the fact that the receipt which was issued following the Record of Interview asserts that the record was 10 pages in length.  The receipt is exhibit P161.  The cross examination on this topic was upon the premise that the Record of Interview was itself 10 pages long and accordingly that demonstrated that the photocopies of the photographs were annexed as an afterthought.  The implication was that the afterthought occurred after the receipt was signed.

85.Mr So was cross examined on the basis that the various acts of misconduct alleged against the police were untrue.  During the course of this cross-examination it was elicited from Mr So that the serious assaults that had been visited upon him actually left no marks or swelling.

PRINCIPLES WHICH GOVERN THE ADMISSIBILITY OF STATEMENTS AGAINST INTEREST                                                                           

Voluntariness

86.The law of Hong Kong requires the prosecution to prove that an admission against interest made by an accused person is voluntary: Ibrahim v R [1914] AC 599, 618; SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168. In this context, that means that the prosecution must prove to the criminal standard that such an admission has not been obtained from the accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression.  The prosecution must prove voluntariness in that sense beyond reasonable doubt: DPP v Ping Lin [1976] AC 574.

87.The generally accepted meaning of oppression in this context is either words or conduct by a person in authority which tends to sap and does sap the will of the accused so that he makes the admission or confession and that includes questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent: R v Priestley (Martin) (1967) 51 Cr App R 1 (Note), and R v Prager (Nicholas Anthony) [1972] 1 All ER 1114, (1972) 56 Cr App R 151.  This test was endorsed by Li CJ in SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168.  In Burut & Ors v PP of Brunei [1995] 2 HKC 305 Lord Steyn accepted that the test for oppression was ‘conduct calculated to sap the will of the person being interviewed’.

88.The burden of proof to establish admissibility is on the prosecution.  The standard of proof is proof beyond reasonable doubt.

Discretion to exclude voluntary statement

89.There is a residual discretion in a court to refuse to admit in evidence an admission or confession that has been found by that court to be voluntary.  Essentially, the principle is that once voluntariness is established,a statement against interest is admissible but the court retains a discretion not to admit the statement if it would be unfair to do so.  The principal focus of this concept is to enquire whether the circumstances are such that they would prejudice the accused’s right to a fair trial.

90.In SJ v Lam Tat Ming & Anor (above), Li CJ described the scope and purpose of this discretion as follows:

“ The Judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as a single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused. The essential question is not whether the law enforcement agency has acted unfairly in a general sense. It is no part of the court’s function to exercise disciplinary powers over the law enforcement agencies or the prosecution as regards the way in which evidence they seek to adduce at trial was obtained by them. See R v Sang [1980] AC 402 at p.436G (Lord Diplock); R v Cheung Ka Fai & Another [1995] 2 HKCLR 184 at p.195 ℓ 40 (Litton V-P). The court’s function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.

The test of unfairness is not that of a game governed by a sportsman’s code of fair play. See R v Sang [1980] AC 402 at p.456D–E; R v Swaffield (1997–98) 192 CLR 159 at pp.185–6,para.35 (Brennan CJ). Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused. R v Sang at p.453C (Lord Scarman); Scott v The Queen [1989] AC 1242 at p.1256A–B. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent. See R v Sang at p.437B (Lord Diplock), p.456E–F (Lord Scarman); A-G v Lam Man Wah (No 2) [1992] 2 HKC 70 at p.72C.

The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal: (1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence.  To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles.  R v Sang [1980] AC 402 at pp.436H – 437D (Lord Diplock) and p.455C–E (Lord Scarman).” 

91.Li CJ in the passage cited in the preceding paragraph went on to cite the example of a breach of the rules and directions given by the Secretary for Security (broadly, the successor to the Judges’ Rules) as an example of circumstances in which the discretion to exclude an otherwise voluntary statement might operate.  On no account could he be understood as limiting discretion to that example.  There are other examples where the discretion might also be considered.  These examples include physical and/or mental condition of the accused at the time that the accused was making the admission the subject of examination by the court.  So far, the authorities under this heading developed by example.  Against the background of SJ v Lam Tat Ming & Anor (above), I take the underlying principle that what the court must consider is whether the condition of the accused before and at the time of giving the relevant admission was such as to adversely affect (1) the decision to speak or to remain silent, and (2) having decided to speak, the decision as to what to say.  If the condition suffered by the accused adversely affects one or other of these two considerations, and is such as to place in jeopardy the fairness of the trial in which the prosecution seek to introduce the admission then the discretion to exclude that admission might be exercised.

92.So far as the evaluation of the facts and circumstances which might justify the court in excluding the admissions attributed to an accused on the basis of the exercise of the foregoing discretion, I have proceeded upon the basis that it would be for the accused to raise those facts and circumstances which might provide a basis for the exercise of such a discretion, but it is for the prosecution to establish beyond reasonable doubt that the facts and circumstances once raised are not true.

Evidence more prejudicial than probative

93.Each of the accused also contends that the reception into evidence of the admissions against interest is capable of producing a prejudice which is out of all proportion to the probative weight of the admissions because the evidence of the statements reveals that each of the accused has a stand shall drug history.  Although, as noted above, there is no direct evidence of a criminal history, the “flavor” of the case certainly suggests this.  At common law, a court has a discretion to exclude evidence which is tendered by the prosecution and is otherwise admissible in the sense that the evidence is relevant and does not offend against the other rules of evidence.  The overriding objective of the discretion was to ensure that a fair trial of the accused took place: R v Sang [1980] AC 402; SJ v Lam Tat Ming & Anor (2000) 3 HKCFAR 168; HKSAR v Chan Kau Tai [2006] 1 HKLRD 400.  In Pfennig v R (1995) 182 CLR 461, McHugh J made the point that: “The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial.”  Prejudice is not related to the tendency of evidence to inculpate an accused but in the risk that the impugned evidence will be used in an improper manner by the jury and tend to divert the tribunal of fact from its task such as by placing more weight on the evidence than it deserved: Festa v R (2001) 208 CLR 593; R v Handy [2002] SCC 56.

EVALUATION

D2 — Mr Mok

94.The prosecution case was largely dependent on the veracity of DPC 5177.  He was the investigating officer and was responsible for enquiries being made of Mr Mok.  There was not, as sometimes as the case, an officer who accompanied DPC 5177 to witness the events which occurred during the course of his investigation.  It appears that there was not even an officer guarding the interview room where DPC 5177 interviewed the accused and took the records of interview.  I infer from the testimony of this officer taken together with that of Detective Senior Inspector Charm that there was a major operation undertaken on 25 November 2016 and manpower appears to have been at something of a premium.  Whether or not that is the case, the case for the prosecution on the voir dire in relation to Mr Mok rests principally with DPC 5177.  Detective Senior Inspector Charm and Sergeant 54337 also testified but their testimony was limited to events, albeit significant events at the beginning of the process.  Their testimony was in all material respects consistent.  Each denied the various and multiple acts of impropriety alleged against them.

95.As to observations about the apparent health of the accused I placed less weight on the observations of Sergeant 54337 and Detective Senior Inspector Charm because they did not see the accused for all that long. On the version of events to which Mr Mok testified it appears that his withdrawal symptoms had not greatly manifested themselves while Detective Senior Inspector Charm and the Sergeant were on the scene.  The observations of DPC 5177 merit closer attention.  He testified that throughout the time Mr Mok was in his company which, critically, includes the time during which the post record and the six Records of Interview were taken that the accused did not appear unwell.  It was difficult for me to assess how acute an observer of the condition of Mr Mok that DPC 5177 was.  As will shortly appear, I believe DPC 5177 but that does not comprehensively deal with the issue of the condition of Mr Mok.  The symptoms of withdrawal are themselves not necessarily apparent to the untrained observer.  (Indeed, Dr Chan said that these symptoms are also consistent with many other conditions and determining what underlies the symptoms as they present is quite challenging.)  That might be different if the symptoms were highly acute such as if the sufferer of the symptoms was, for example, doubled over in agonising pain.  Dr Chan said that in extreme cases that could happen.

96.It appears that Mr Mok did not complain to the Duty Officer at the time he presented first at Mong Kok Police Station.  That has two possible explanations.  One is that there were no withdrawal symptoms.  The other possibility is that at this stage the withdrawal symptoms either have not manifested themselves to Mr Mok or were not considered important enough to report stage.  As I say, I believe DPC 5177.  He presented as a steady and reliable officer.  I specifically believe his version of events as to what happened in the course of the making of the post record and the recording of the six Records of Interview.

97.The handwriting of Mr Mok occasions in my mind no reasonable doubt as to the voluntariness of the admissions made by the accused.  Specifically, in this regard I do not accept that it is true that Mr Mok asked on multiple occasions for methadone and was told on each occasion that if he cooperated methadone would be supplied later.  I specifically reject the version of events proffered by Mr Mok.  In this regard,I do not believe the version which he gave of his attitude in the taking of the Records of Interview.  It is indeed possible that he was going through withdrawal symptoms but I am sure that he has substantially exaggerated the extent of those symptoms.  The standard of his hand writing does not assist his case at all.  In the course of the post record the handwriting appears to me to be of a decent standard.  There are no errors (this is common ground) in the writing of the part of the post record written by the accused.  I specifically believe DPC 5177 when he says that there were no spectacles in evidence at the hotel and that nothing in the presentation of Mr Mok suggested he had any meaningful difficulty in reading.  It is, of course, conceivable that the eyesight of Mr Mok was below normal on the date of his arrest but I do not accept the story about the glasses and, in particular, the broken glasses.  The pro forma used by Mr Mok was admitted in evidence.  The characters are of a substantial size and certainly bigger than either the handwriting of the constable himself and the handwriting of the accused in the post record.  That handwriting suggests to me that the accused had no difficulty in reading or writing at that stage.  There is no suggestion that withdrawal symptoms, to whatever extent they may have been suffered affected the ability of the accused to read or write.  I specifically do not believe the accused at all when he said he blindly copied the characters that he wrote into the notebook in the course of the post record.  I specifically believe that it would be necessary to advert to the nature and content of that which he was writing and that is so regardless of whether he was copying from the pro forma (which is what I believe happened) or responding to dictation.

98.That there were errors and omissions in the copying of characters in the parts of the Records of Interview which were written by the accused is not open to doubt.  However, care must be taken not to lose sight of the undeniable fact that although the standard of handwriting was not good, the vast majority of the characters written by the accused in those Records of Interview were an accurate reflection of the passages in the various pro formas from which they were derived.  I specifically believe that these were copied and were not dictated.  The degree to which there were indecipherable characters is, I fully accept, substantially exaggerated. Clearly there were characters which were ill-formed and could have been written better.  Indeed, it is fair to say that some of the ill-formed characters which appear in some of the declarations are badly formed in some of the declarations and reasonably well formed in others.  There are characters where there are missing components of the fully-formed character I am sure that those characters were ill-formed by laziness rather than as a result of acute suffering of withdrawal symptoms.  There are characters which are omitted.  Quite why they are omitted is not something I am able to explain.  What I am sure about is that the explanation is not the version of acute withdrawal symptoms which was the case for Mr Mok.

99.In the Records of Interview, the standard of handwriting of the parts written by Mr Mok varies and if the accused was deteriorating substantially during the course of the Records of Interview which, as counsel for the accused quite properly pointed out was a very lengthy process, it might have been expected that the handwriting of the accused might have become progressively worse over that period.  That was not so.  Some of the later examples are some of the better pieces of handwriting on the part of the accused.

100.Lest there be any doubt about it, I accept that it is at least reasonably possible that the accused was suffering from withdrawal from heroin or, conceivably, methadone, but that is withdrawal symptoms which were not even remotely as bad as he propounded.  The description of the extent of the symptoms was substantially untrue.  Mr Mok demonstrated himself to be a dishonest witness in a multitude of areas.  Perhaps the shining example of that was in his assertion that the police officer wrote the whole of the Records of Interview (which is, of course, physically true) but that the answers attributed to the accused were not given by the accused.  As was noted earlier in these reasons, there were examples of where the content of the answers could only have come from Mr Mok and in that same answer DPC 5177 recorded the version of Mr Mok rather than the version which the officers who spoke to that topic gave.  In short, in my opinion, Mr Mok was a dishonest and unreliable witness and follows from that when taken together with the fact that I thought the police officers to be honest and reliable witnesses that I am satisfied so that I am sure that the Records of Interview were voluntarily given and were not the product of oppressive behaviour.  I am satisfied that the prosecution has proved that nothing in the events occurred during the time when the admissions were made that anything in the condition of the accused adversely affected either the decision on the part of the accused to speak or to remain silent or, he having decided to speak adversely affected his decisions as to what to say.  It follows from that that on the facts proved before me there was no basis on which to exercise my discretion to exclude otherwise voluntary statements the post record and the Records of Interview are admissible and will be admitted into evidence in the trial.

101.The accused testified that he had Primary 3 education.  In the Record of Interview, there is a reference to his attaining Primary 6 education.  It struck me that his education in the broad sense must have continued beyond that because he presented as a person of real intelligence and although I am a very imperfect judge of this matter, it struck me that he was much more articulate and literate at the time of his arrest and his presentation before this Court than a Primary 3 (or 6) education would suggest.

D3 — Mr Lau

102.The case in relation to the voir dire for Mr Lau is fundamentally factual.  In my judgement, the officers who gave evidence in support of the prosecution all presented in a logical and straightforward way.  They firmly resisted the suggestion which I consider to be outrageous that they actually permitted Mr Lau to take drugs in the course of a house search.  Moreover, Mr Lau presented in a logical and coherent manner in the video recorded interview.  There was certainly nothing in that which ported coaching and the pause in the course of the video recorded interview (which was, in any event, momentary) as evidence of Mr Lau thinking what the “script” was so that he could follow the coaching was, to put it at its kindest, wishful thinking.

103.Counsel for Mr Lau as argued that there were discrepancies as between the prosecution witnesses over aspects of the case.  These were, at the absolute most, minor discrepancies and do not, in my opinion, detract from the overall impression of reliability given by these officers.  I am satisfied beyond reasonable doubt that the verbal answer, the entry in the notebook which followed it and the video recorded interview were given voluntarily and not the product of oppression.  Accordingly, the admissions against interest made by Mr Lau are admissible.

D5 — Mr So

104.In effect there are three phases of which one is critical in the case in respect of Mr So.  The critical phase is the transfer of Mr So from the duty officer at Tseung Kwan O Police Station to the interview room on the 2^nd floor of that Station and the interview which took place in that interview.  The two phases which precede that are fairly innocuous.  It may be that the Police Constable who arrested Mr So might have been more observant and it is conceivable that even if Mr So did not ask for methadone and to wait for the methadone clinic to open so that he could obtain such a perhaps more alert Constable might have made appropriate enquiries which might have brought that about.  However, that was not to be and Mr So was taken back to the police station and processed there. The second phase involves the processing of Mr So at the Wong Tai Sin Police Station.  There, a post record of the arrest and caution at the methadone clinic was undertaken.

105.In my judgement, the officer who dealt with this accused was impressive and his evidence was logical and coherent.  He may not have been the most observant of officers but that does not diminish my view of his veracity.

106.The third phase of this case is the most critical.  In my judgement, the three officers germane to this phase presented as honest witnesses.  I reject the proposition that the accused was handcuffed. The mere fact that an officer’s equipped with a set of handcuffs does not assist the evaluation of this issue.  I accept as true the evidence of the officers that what drove the decision was that the arrested person was an older man and unlikely to escape.  I reject without any hesitation the allegation that the accused was beaten up in the interview room in the manner he described.  If that were true it would have been an extraordinarily dramatic event and given the blows that Mr So asserted were rained upon him it is utterly astounding that no marks were left even if bruises had not presented at the time of the conclusion of the interview, it would be astounding if the head of Mr So was not swollen.

107.The only matter that even troubled me for a moment was the number of pages on the receipt being inconsistent with the total number of pages of the Record of Interview when one takes into account the two photocopied photos which were shown to Mr So.  In my judgement, the marking of 10 pages on the receipt as opposed to the 12 pages which it manifestly should have been is either a simple accounting error or a wooden- headed appraisal of what is Record of Interview and what is not.  I am fortified in this view by the fact that the Record of Interview itself records in pertinent detail the reference to the two photocopies of the photographs.  In any event, it is a very curious thing to be deceptive about.  After careful consideration I have come firmly the view that this does not diminish the credibility of any of the police team involved in this case.

108.For these reasons, I am satisfied beyond reasonable doubt that the admissions against interest in exhibit P160 are voluntary and are not the product of oppression and are therefore admissible.  There is no basis upon which these admissions should be excluded in the exercise of the discretion of the court.

Evidence more prejudicial than probative—all accused

109.The statements made by each of the accused tend to prove to varying degrees that each individual accused was involved in the trafficking of dangerous drugs on a retail basis.  Incidental to the probative force of the statements is the fact that to an extent, the accused admitted previous drug involvement.  Certainly, their defence to the case brought against them necessarily reveals a previous involvement in drugs.  Indeed, that involvement in each individual case appears to be a long-term involvement although the details vary as between individuals.  As I have already noted, a jury could, if they wished, include that accused, regardless of the criminal activity revealed in the statements that the accused may well have terminal convictions and those criminal convictions may include criminal convictions for drug-related offences.

110.It is contended by each of the three accused who object to the reception into evidence of their statements that that the revelation of these aspects of the case are prejudicial to the case.  It is not open to doubt that the statements of each individual accused, if received into evidence would be probative of their involvement in not just penny-ante acts of trafficking but in an organised retail operation which the jury could conclude is a conspiracy to traffic in dangerous drugs.

111.In my opinion, there is clear prejudice by the revelation of the criminal involvement in drugs.  It will be, in my opinion, necessary to take all relevant steps to ameliorate that prejudice.  Leading counsel for the prosecution, Mr Ryan, as indicated that it is possible to redact some aspects of the statements which would reduce the prejudice.  He tells me, and I unreservedly accept, that he will be careful in his presentation of the case to avoid reference to the prejudicial components of the history of the accused.  However, it seems to me that it would be necessary for the accused in order to defend themselves to reveal a connection with drugs in their past. Not the least example of this would be the calling of evidence that the admissions against interest of each individual was obtained while that individual was going through withdrawal symptoms.

112.In my judgement, the probative effect of the statements substantially outweighs any prejudice which arises from these matters.  It does so, in my opinion, by a wide margin.  Nevertheless, a direction to the jury to ameliorate the prejudice would be something which would promote a fair trial.  While I have not formulated the precise words that would be appropriate (That is something which is better left to the time closer to summing up) I would not simply direct the jury not to speculate about matters such as that.  I can easily see how such a direction might be somewhat weak. My present thinking is that the jury should be directed not to hold that background against the accused.  Quite how that is to be formulated will be a matter which has to abide the event of the completion of the evidence in the trial.

113.For these reasons, I decline to exercise my discretion to exclude the statements on the basis that the prejudicial components of and surrounding them outweigh the prejudicial effect of the statements.

POSTSCRIPT

114.The evidence which formed the basis for this voir dire was repeated in the trial on the general issue.  Nothing in the evidence in the general issue caused me to doubt the conclusions herein.

Mr Bernard Michael Ryan and Ms Emma T C Tsang, counsel on fiat, for HKSAR

Mr Albert Wai-hung Luk and Ms Gigi Wing-chi Ho, instructed by C M Chow & Co, assigned by Director of Legal Aid, for the 1^st accused

Mr Yuen-ming Liu, instructed by Ho & Associates, assigned by Director of Legal Aid, for the 2^nd accused

Mr Osmond Lam, instructed by Cheung & Liu, Solicitors, assigned by Director of Legal Aid, for the 3^rd accused

Mr Tony Chung-yin Li, instructed by Cheng & Wong, assigned by Director of Legal Aid, for the 4^th accused

Mr Paul Kin-ng Wu, instructed by S Y Fung, Solicitors, assigned by Director of Legal Aid, for the 5^th accused