HKSAR v. Pun Cheuk Wang

HCCC 300/2019

[2020] HKCFI 3003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 300 OF 2019

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BETWEEN

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Before: Deputy High Court Judge Bruce SC in Chambers

Dates of Hearing: 13 to 16 July 2020

Date of Reasons for Ruling: 1 December 2020

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REASONS FOR DETERMINATION OF

ADMISSIBILITY ON VOIR DIRE

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Procedural history

1.On 13 July 2020, Pun Cheuk Wang (hereafter referred to as the accused) was arraigned on an indictment alleging that he unlawfully trafficked in 26.58 kg of a powder containing 26.55 kg of methamphetamine hydrochloride.  Indictment alleges that this occurred at the Gold Power Motor Beauty in Yuen Long.  To this indictment, he pleaded not guilty.

2.The accused by his counsel, Mr Keith Fung, objects to the reception into evidence of:

(1) an oral admission said to be made on 2 November 2018 by the accused at the Gold Power Motor Beauty;

(2) a notebook entry in the notebook of DPC 9604 said to be made at about 1730 on the same day;

(3) a notebook entry said to be made on the same day at 2230;

(4) a notebook entry which is characterised as a post-record said to be made on the same day; and

(5) a video recorded interview which is said to have occurred between 0104 and 0135 on 3 November 2018.

The particulars of objection are set out in a detailed manner in a document signed by Counsel for the accused on 23 June 2020.

3.As a result of these objections, a voir dire was conducted to determine the admissibility of the items set out above.  I ruled that these admissions were admissible.  At the time I indicated that I would provide my reasons in writing for this ruling.  These are those reasons.

Prosecution case

4.The prosecution called 3 witnesses.  The essence of the prosecution case is that on 2 November 2018, the police had received certain information that entity of methamphetamine hydrochloride referred to in the indictment, had been imported into Hong Kong in 2 metal cylinders, which would ordinarily be used for hydraulic lifting.  The critical part of the case for present purposes is that these 2 cylinders were located at the premises of Gold Power Motor Beauty. At the same premises, a light van was located together with the accused.

5.Gold Power Motor Beauty appears to be a garage devoted to re-spraying motor vehicles.  The officers called in the voir dire where all members of a team of officers attached to the Narcotics Bureau of the Hong Kong Police Force.

6.The first officer to be called was DPC 3998 Do Rego Keith.  He testified that he went with a team of Narcotics Bureau officers to the Gold Power Motor Beauty premises.  This officer entered the premises and found the accused sleeping on a chair in front of a 7-seater light goods vehicle registered KT 3353.  The officer woke up the accused.  When he woke up the officer showed him his warrant card.  The accused said to this officer that he was waiting for another person for delivering works to that effect.  This occurred at 17:32 hours.

7.At 1739 hours the same day, DPC 3998 handed the accused over to DPC 9604 for further enquiries.

8.The second witness to be called was DPC 9604, Lam Wing Pan.  He went to the premises with his colleagues and arrived at about 1730.  He says that he spoke to the accused and received the replies detailed in the notebook.  He noted this down in his notebook exhibit P 28.  He testified that the entry in the notebook is the effect of what he says and does not reveal that this was the product of questioning.  The officer testified that he then cautioned the accused for the offence of trafficking in a dangerous drug.  However, he was not arrested at this stage.  In answer to the cautioned the accused said “I was directed by someone to come over to receive these two items of goods in return for 40,000 dollars.  I did ask if (those) were dangerous drugs, but he/she did not answer me.”

9.The police then proceeded to cut open the cylinders in which they suspected dangerous drugs found.  That took quite some time but, in the result, a substantial quantity of dangerous drugs was found in the cylinders.  This quantity is reflected in the indictment upon which the accused was arraigned.  Following the opening of the cylinders and the revelation of a substantial quantity of white powder therein, DPC 9604 arrested the accused for the offence of ‘Trafficking in a dangerous drug’ and cautioned him.  The reply that he gave on this occasion was subtly but importantly different.  The reply was: “Ah Sir, I did receive 40,000 dollars for helping someone to receive the dangerous drug(s).  I thought (it/they was/were) just cannabis.  I didn’t know (it/they was/were) ‘ice’.”

10.The officer testified that he then commenced to take a post-record of all of this and we see that in the notebook at an entry commencing at 10:45 PM. The post-record was read and shown to the accused.  DPC 9604 testified that he said to the accused that he could alter, correct or add anything if he had any questions about the caution statement.  At 11:12 PM, there appears in the notebook a request to sign a declaration.  There follows the usual declaration including the assertion that the contents of the statement are all true.

11.Following that, the accused was taken back to the Yuen Long Police Station.  Following the usual formalities with the Duty Officer, he was searched and his mobile phones were seized.  They were bagged in tamper evident envelopes.  In due course, at 1:04 AM on 3 November 2018, DPC 9604 commenced a video recorded interview with the accused which concluded at 1:35 AM.  Once again, the admissions already made were set out in the video recorded interview and further admissions were made.

12.Detective Sergeant 50895 appeared towards the end of the video recorded interview.  He is concerned was to ensure that the issue of whether or not the accused consented to the police examining his mobile phones had been raised.  The Sergeant had been at the scene earlier and, as will shortly appear, was the subject of attack as to his conduct at the scene.

13.It is to be noted that at no stage was ever suggested that the accused did not consent to his mobile phones being examined by the police.  Indeed, this appears in the video recorded interview and later in the notebook of DPC 9604.

Defence case

14.The defence case was, in essence, a series of inducements.  Initially, this case was particularised in considerable detail by Mr Fung, Counsel for the accused.  I use the word “initially” because during the course of his testimony, the accused added to the allegations made against the police.

15.In the course of the cross examination of DPC 9604, there were suggestions that he should have cautioned the accused earlier than he did because, in essence, the police would not have been where they were, but for the fact that, they believe that there was methamphetamine hydrochloride in the cylinders in Gold Power Motor Beauty garage.  The essence of the response to this was that DPC 9604 said he preferred to wait until the cylinders were cut open, but he had in any event prior to that cautioned the accused.

16.It was alleged that the accused was told by Detective Sergeant 50895 that he could walk away from the matter, if he did what he was told and made admissions that he had received $40,000 and that he thought the drug was cannabis rather than ice.  The allegations and the testimony says that this influenced the accused to make the admissions that he did to DPC 9604.

17.The accused said that he was taken to a light goods vehicle.  In the light goods vehicle, according to the allegations, the case for the defence was that the $40,000 was not for the accused, but to be received and taken to the delivery company.  It was said that the notebook entries were not read to the accused, nor was he informed as to the content.  The accused testified that nevertheless he signed the documents.  He told the Court that throughout time at the garage, both Sergeant and the DPC had assured him that if he cooperated, he would be allowed to telephone his relatives.

18.The accused said that in relation to the journey from the garage to the police station, the Sergeant told the accused following an enquiry by the accused that he would be allowed to make a telephone call after he completed the video recorded interview, which was to be done at the police station.  If one views the written objections, this is the first time that there is any reference to an inducement to cooperate in exchange for being permitted to make telephone calls.  In contrast, in the testimony of the accused before the court, there have been numerous inducements to this effect prior to getting onto the transport to go to the police station.  The inducement in this regard on the van was just a further inducement in this series.

19.The most egregious conduct alleged by the accused against the Sergeant and the DPC was that, in a room in the police station, the officers extensively coached the accused as to what to say in the video recorded interview.  There is a substantial variation of detail between what is alleged in the written notice of objection and the testimony of the accused.  There was the additional inducement at this stage of the offer of bail, if the accused cooperated and made admissions during the video recorded interview.

20.There was also a variance as between particulars and testimony as to when the two notices to persons in custody were produced to the accused and signed by him.

21.Following the rehearsal, the accused was taken into the room for recording the video recorded interview.  In effect, according to the accused, prior to the recording being switched on, he was told that he must say that he did not want a lawyer.  The effect of this was to deny the accused legal representation.

22.The accused was cross examined in detail to the effect that the version given by him in the witness box varied in significant and substantial detail as to the complaints alleged against the police.

Submissions

23.The prosecution argued that the accused was not to be believed and that the prosecution had made out its case with respect to the entries in the notebook and, later in the video recorded interview.

24.So far as the submissions on behalf of the accused was concerned the central theme of these submissions was that there had been inducements in relation to the timing of when telephone calls might be made to relatives and also to bail.  In the course of his testimony, the essence of the accused’s position was that he feared that if he did not cooperate, he would be beaten up. When questioned about the source of this fear he pointed to an oppressive atmosphere in relation to the “rehearsal” of the answers to be given in the video recorded interview.  In addition, submitted that the Court or to exercise its discretion in favour of the accused in relation to the timing of the initial caution which, it was submitted permeated the whole of the process and the effective denial of legal representation.

Principles

25.The principles which govern the admissibility of the items, the subject of objection, are as follows.  The prosecution must establish that the statement made is a voluntary statement in the sense that it 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: Ibrahim v R [1914] AC 599,609; S-J v Lam Tat Ming & Anor (2000) 3 HKCFAR 168, [2000] 2 HKLRD 431, 439, [2000] 2 HKC 693, 701.  The standard of proof required is criminal standard: proof beyond reasonable doubt.  In S-J v Lam Tat Ming & Anor, which is the authoritative iteration of the principles for Hong Kong, the Court of Final Appeal made the point that the scope of the concept of voluntariness is restricted.  In that case, Li CJ observed:^[1]

“Although the principles relating to voluntariness were developed in a historical context when the accused had few if any safeguards, they are well settled. Whilst judges should not extend them, they must not whittle them down.”

In the present case, these principles are engaged because the grounds of objection and the testimony of the accused asserted that threats of violence were made by the police officers involved in the arrest and the initial stages of the investigation.  Further, it is the case for the accused that the police made offers of bail and the ability to make telephone contact with relatives was held out as an inducement to cooperate.  The police are, manifestly, persons in authority for the purpose of considering whether or not there were such inducements.

26.There is also a discretion to exclude an otherwise voluntary admission against interest.  That discretion encompasses a multitude of consideration.  In the present case, it is necessary to consider the exercise of such a discretion because Counsel for the accused asserts that the accused was forced into declaring that he did not want a lawyer.  The effect of this argument is that in reality the accused was denied the services of a lawyer.  The discretion to exclude such a statement also falls for consideration because Counsel for the accused also asserts that in relation to the first notebook entry, the accused was cautioned too late. 

Evaluation

27.In my judgement, the officers who testified were sound impressive witnesses.  They testified in a matter-of-fact manner.  DPC 9604 conceded that his recording of the initial conversation with the accused left something to be desired in the sense that failed to reveal that what he attributed to the accused was the product of questioning.

28.In contrast, the accused was an appalling witness.  He gave the unmistakable impression of a person, who was making up his testimony as he went along.  In making up the testimony, he appeared to be untroubled by any need to make that testimony consistent with the detailed objections that his counsel provided to the Court.  The cross examination of the prosecutor was largely focused on those differences and the inherent improbability of the story of the accused.

29.Although I had no hesitation in rejecting the testimony of the accused as an improbable sequence of events and a testimony bereft of any concern for the truth, the issue remained as to whether the prosecution proved their case. In my opinion, the case for the prosecution was a sensible and compelling one and the witnesses testified in a restrained and cogent manner.

30.I had no hesitation in accepting as true what the prosecution witnesses said and rejecting as untrue what the accused had said.  Accordingly, having reviewed the evidence and listened to the submissions of Counsel for the prosecution and the accused respectively, I am satisfied that the prosecution must establish that admissions made by the accused, which are the subject of objection are each a voluntary admission in the sense that it 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.

31.There is reposed in the Court a discretion to exclude an otherwise voluntary admission.  The essential concerns of the exercise of this caution are fairness to the accused and to ensure that the accused has a fair trial.

32.The principal concerns raised by the accused in relation to the exercise of a discretion to exclude his admissions is a failure to caution at an appropriate moment in relation to the oral admissions and, in effect, a practical denial of legal representation by the police.  There is also a repeated suggestion of a failure to accord to the accused the opportunity to contact relatives and other persons.  I take that as not a matter which falls for consideration in relation to the discretion, but is a basis for the accused contending that there was an inducement held out to him by a person in authority to make admissions.  Even if I was wrong about the true basis of the contentions about the failure to allow telephone calls, I would not in any event have found this a sufficient basis to exercise my discretion to exclude an otherwise voluntary series of admissions.  As to the issue of the timing of the caution and issue of effective denial of legal representation, I do not accept the factual basis of the decision of an effective denial of legal representation.  Accordingly, that does not fall for consideration.  In relation to the assertion in relation to the timing of a caution, that was conceivably an issue.  I would not in any event have exercise my discretion in relation to that contention.  Even if I was wrong about that the post-record of the earlier exchanges between the accused and DPC 9604, which were explicitly under caution sees a repeating of the earlier admissions.  Accordingly, I decline to exercise my discretion.

33.There were other breaches of police procedure alleged.  Even if I thought that these breaches were true or might be true, they were so trivial as not to trigger an exercise of the discretion.

Mr Neil S. Mitchell, Counsel on fiat for DOJ / HKSAR, for Prosecution

Mr Keith C.W. Fung, instructed by Ivan Lee & Co, assigned by D.L.A., for the Accused