HKSAR v. Lau Ting Yin

HCCC 174/2020

[2021] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2020

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Before: Hon Campbell‑Moffat J in Court

Dates of Hearing: 14 & 17-18 May 2021

Date of Decision: 18 May 2021

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R E A S O N S  F O R  D E C I S I O N

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1.This is an application by Ms Alva on behalf of the defendant, objecting to the admissibility of the admissions against interest allegedly made by the defendant immediately prior to and at the time of his arrest and to the post record of an admission made in [P64]. Ms Alva further seeks to have the VRI [P68] rendered inadmissible. She submits that those admissions were obtained as a result of assault, intimidation, inducement and/or oppression. This would not include the first admission made by the defendant which was at the door of the flat and before any such assault took place. I assume Ms Alva wishes the Court to exercise its discretion to exclude this also if the court accepts the version of events put forward by the defendant, for it that were the case, then there was no such admission.

2.For the avoidance of doubt, and for ease of reference, anything said by the defendant and relied upon by counsel for the purposes of this application, will be referred to as admissions whether that is the case or not on the facts.  I will also refer to Choi as D1.

3.The first admission in time, which is sought to be relied upon by the prosecution, occurred before arrest and caution at a time when the defendant first rang the doorbell of Flat 3905.  An officer opened the door and the defendant told him that he had come to see “Ah Sing”.  When asked what he wanted him for, the defendant replied “I have come to see how his stuff is coming along”.  The second admission relied upon by the prosecution is allegedly what the defendant said after arrest and caution, which amounts to “Ah Sir, I merely introduced Ah Sing to Ah Hung so that he could help carry out the work”.  The remaining admissions are contained within the VRI [P68].

4.In his Grounds of Objection, the defendant submits that he said neither of those statements.  The thrust of his complaint is therefore that the officers are lying and not that he made these admissions involuntarily.  The defendant also submits that he was never arrested and cautioned and that the only admission he made at about the time of the alleged arrest was that he had introduced Ah Sing to Ah Hung.  This admission, if it can be said to be an admission, was made as a result of assault and threats from several officers.

5.As for the post record under P64, the defendant further submits that DPC 4980 did not read the contents of the post record to the defendant and did not ask the defendant to read it over to himself.  The defendant was not given the opportunity to read it and had not read it.  The defendant maintains that the appending of his signature on the post record and the declaration were written as a result of threats made by the officers and a physical assault, all of which occurred in the stairwell.  Thereafter the defendant submits that he was not served with a Notice to Persons in Custody POL 153 at the flat.  Indeed, he was never taken inside the flat at any stage.  He maintains that both POL 153s, P62 and P63, were signed at the same time immediately prior to interview and without the opportunity to read them or have them read over to him.

6.The defendant takes issue with the video recorded interview (“VRI”) and the admissions against interest, again if they can be said to be that, made at that time.  He maintains that, immediately before the interview took place, DPC 4980 said to him “Let’s get this done quickly and we will see if you will get bail later on”.  He said this more than once.  The VRI [P68] was taken some five hours after arrest and in the presence of his elder brother Lau Ting-hong.

Prosecution Case

7.DPC 4980 was called upon the voire dire.  He gave evidence that he had opened the door of the flat when the defendant rang the doorbell and that he had enquired why the defendant was ringing.  He told the court that the defendant had said that he wanted to see Ah Sing and that he had said he was there to see “how his stuff was coming along”.  When the officer identified himself as a police officer, the defendant ran away but only got about 10 metres when he was apprehended and taken back into the flat, as the officer had formed the view that he might be involved.  He was taken first into the living room so that DPC 4980 could make a report to DSgt 58725 and then to a bedroom where the dangerous drugs had been found.  DPC 4980 then arrested and cautioned him for conspiracy to traffic in dangerous drugs, to which the defendant replied “Ah Sir, I merely introduced Ah Sing to Ah Hung so that he could help carry out the work”.

8.The officer made a record of that reply in his police notebook immediately after it was said and he had the defendant sign it to verify what he had said upon arrest and caution.  Thereafter, he took the defendant out into the corridor a little way from the door of the flat and sat him down on a chair.  At this point he made his post record.  He then read it over to the defendant and asked the defendant to read it over to himself.  Once he had appeared to do so, the officer provided him with a printed form upon which was the declaration.  He read it to the defendant and allowed him to read it for himself.  He then asked the defendant to copy the declaration onto his notebook if he agreed with it and the defendant did so.  The defendant then signed the declaration and any amendments which had been made to the post record.  Later they returned to the Kwai Chung police station, at which point the defendant was handed over to the Duty Sergeant.  DPC 4980 asked the defendant if he wished to call his family as he was just 17 years of age and the defendant did so.  As a result, they needed to wait for the defendant’s elder brother to attend before a VRI could be carried out.  In the interim, DPC 4980 carried out a number of other procedures including a more thorough body search and the service of several documents for which the defendant signed.  The VRI took place between 01:19 and 01:53 on 10 February 2019.  The officer accepted that the defendant appeared calm and timid throughout.

9.DPC 6123 was the exhibits officer.  The dangerous drugs and other items were found within the bedroom of Choi.  It was this officer’s job to record and secure them pending the attendance of police dog and photographer and he was the officer who had custody of them throughout and during the journey back to the police station.  He said he heard the doorbell ring but did not attend to it as he was inside the bedroom making a record of the exhibits at the time.  DPC 4980 had entered the room for a short while at some point in the company of a male and had indicated the dangerous drugs but had then left the room.  DPC 6123 had no more to do with that male whilst at the scene.  He accepted that he had made no detailed note of this incident in either his notebook or his witness statement save for what he had said at paragraph 10.

10.DSgt 58725 was the officer in charge at the scene and maintained he had been in the living room of the flat for most of the relevant time.  DPC 486 also gave evidence.  He was the arresting officer of D1 and had been inside the flat at the time the doorbell rang and DPC 4980 had given chase.  He was guarding D1 throughout.

Defence Case

11.The defendant elected to give evidence.  He said that he had rung the doorbell of 3905 at about 8.30 pm and that someone had come to the door but he could not see past him into the flat.  As he did not recognise the person who answered the door, he assumed he had made a mistake and left going in the direction of the fire escape and rear stairwell.  When he did so, the defendant said that two officers DPC 6123 and DSgt 58725 had quickly given chase and taken him through the fire escape into the stairwell. DPC 6123 had then told him he was a police officer and asked the defendant if he “knew what the matter is”.  The defendant had said he had no idea what the matter is.  In response DPC 6123 slapped his face and DSgt 58725 took his mobile phone from his trouser pocket and asked him to unlock it.  The Sgt then also slapped him and told him to unlock the phone to prove he had nothing to do with it.  He then punched him in the chest two to three times.  The defendant said that as he was now scared, he unlocked the phone but then the Sgt asked him for the WhatsApp password, which he also provided.  After that he was asked for his ID by DPC 6123 and some 5 to 10 minutes passed before other officers appeared.  According to the defendant, no one at this stage had said anything about what had happened in the flat or mentioned Choi.  He gave no evidence as to what he suggests the Sgt found on the phone once it was unlocked.  The new officers were identified by the defendant as DPC 4980 and DPC 486 and one other.  According to the defendant, DPC 4980 said, “You know what the matter is, reveal all”, to which the defendant replied, “I have no idea what the matter is”.  In chief, he said that DPC 4980 gave him many slaps whilst asking a lot of questions.  Under cross‑examination he could not remember how many slaps but described it as a question or two and then a slap; then another question and a slap and so on.  The defendant said he put up his hands and tried to fend off the slaps by DPC 4980 and was then handcuffed.  At this point he was told to squat by DPC 486 and DPC 486 repeated the question to which the defendant gave the same answer.  DPC 486 then made a threat which was, “Believe it or not, that I can plant a packet on you and then you will have your fingerprint on it.”  It was at this point that the defendant said out of the blue and without any information as to the crime at hand, “I merely introduce Ah Sing to Ah Hung”.

Submissions

12.Mr Laskey on behalf of the prosecution submits that the court should apply simple common sense to the arguments raised by the defence.  The defendant was not the target of the operation, there would be no reason for the officers to behave in the way suggested when he came to the door of 3905.  The fact he ran away was bound to trigger a response from DPC 4980 and it was only at that point that DPC 4980 had a suspicion that the defendant might be involved but no more than that.  There would be no sound reason for a group of officers to assault the defendant, they had no idea who he was or any suggestion of a role.  The suggestion that they would attack a young man for no reason should be set against their obvious goodwill when they suggested the defendant should have a family member with him for interview, and the considerable wait in the middle of the night for that family member to attend.  The defendant himself accepted he felt more comfortable with his brother there.

13.Ms Alva on behalf of the defendant sought to pray in aid HKSAR v Lau Ho Yin CACC 288/2011 and HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093 in respect of the alleged pre-caution admissions.  If I accepted these took place, the totality of which would amount to the defendant saying that he had come to see Ah Sing and to see “how his stuff was coming along”.  This was not recorded in the officer’s note book [P64] and Ms Alva submits should be rendered inadmissible.  The matters before the Court today and the facts underpinning the case of Lau Ho Yin and Chan Yuk Ling are, with respect to Ms Alva, entirely different.  In Lau Ho Yin the Court of Appeal considered a scenario which was highly suspicious and a situation where officers in evidence were reporting significant inculpatory comments which had not been recorded and yet the comments upon arrest and caution on each occasion were of no significance and yet had been recorded.  The Court of Appeal noted in that situation the defendant should have been cautioned at a much earlier stage, that is not suggested here and these highly incriminating comments were not recorded so as to provide the defendant with an opportunity to verify them by signing the notebook.  Even if the comments made by the defendant in this case could be said to be inculpatory, he said the same thing in essence on arrest and caution and he expanded upon it in interview.  There is no prejudice to the defendant in respect of the words “How his stuff was coming along” save to suggest that he knew Ah Sing and that he had come to see something.  What he was coming to see and why, is wholly a matter of inference.  I accept that the better course is to record all conversations between officers and defendants but I do not accept that necessarily renders them inadmissible if the officer fails to contemporaneously record them.  I quote the Court of Appeal at paragraph 56:

“A tribunal of fact always has an advantage over an appellate tribunal insofar as the first instance tribunal observes the witnesses, immerses itself in the details and, over the course of the hearing, secures a “feel” for the case.  Where police officers give evidence, the failure to follow rules is not of itself necessarily fatal and it is right for a court to approach evidence realistically, acknowledging or recognising flaws that stem from inexperience or other factors which do not affect credibility.  Yet, even so, inherent probabilities and improbabilities are always sound guides to truth and where important evidence is on its face inherently improbable, that inherent improbability should be addressed.  There may be an acceptable explanation for it.  But where there is not an acceptable explanation for it, an inherent improbability should give pause for real concern about the reliability of the testimony on that point.  Whether that concern, in the context of the whole of the evidence in the case, results in an outcome favourable to one side or the other must be fact and evidence specific.”

14.Chan Yuk Ling refers to an arrest for TDD where the alleged pre‑caution admissions amounted to a full confession with the defendant indicating where the drugs were in her shop.  There was no good reason why such a confession would not be recorded in an officer’s notebook if it had been made regardless of whether the officer had an opportunity to arrest and caution beforehand.  That is not the case before this Court.  This was merely an introductory communication with an enquiry as to who the defendant was and no more.

Discussion

15.The defendant was adamant under cross‑examination that he had genuinely thought that he had made a mistake when he rang the doorbell of 3905 and someone he did not know appeared at the door.  The person at the door had opened it only very slightly so that he could not see the living room inside and had not spoken to him.  It was the defendant who spoke and that was to say that and he thought he had the wrong address.  At no stage in his evidence does he accept that he knew the flat belonged to Ah Sing, nor does he accept he was ever taken inside or that he knew what had occurred within.  Therefore, his volunteering after multiple assaults to the effect of “I only introduce Ah Sing to Ah Hung”appears somewhat out of context.  If no one had spoken to him and he had not seen what was happening inside the flat, what was it they were telling him to admit?

16.The police witnesses agreed they did not know of the defendant before the evening of 9 February 2019.  There has been no suggestion by the defence that they did.  The defendant agreed he did not know the officers.  He said he rang the bell of Room 3905 and maintains that the large and almost solid metal gate is closed when he does so despite the fact that several officers are inside the flat and would have been coming and going freely after they had arrested D1.  There is a small area in the metal gate, at head height, allowing callers to speak to residents but otherwise this is a substantial security door if it was actually closed as the defendant suggested.  It would have taken some time to open sufficiently for a large officer, as 6123 was, to get through and to follow the defendant by which time a lanky young lad such as he is could have reached the fire escape or taken the alternative route of the lift.  This is the point at which the court has to look at inherent probability and improbability.  Why would any officer pay any attention to a caller they did not know if the caller had simply stated he had pressed the incorrect doorbell and walked calmly away?  Even if the caller had run away, why would an officer or officers need to take him into the rear stairwell when they had control of the flat?  According to the defendant five officers out of the nine officers at the scene, were in this exercise in the stairwell together, including the on‑site officer in charge.  Why hide their behaviour in a stairwell?  Why leave over 6 kgs of drugs, D1 and the other family members under the control of just three officers in order to apprehend a youngster they did not know and had no intelligence about?

17.I listened carefully to all of the witnesses.  DPC 4980, in particular, was quite pedantic and not at all afraid to disagree with prosecution counsel where appropriate.  He appeared to have a meticulous approach to the way he carried out his job and could explain the reasoning for why he did or did not do any particular action.  I consider in particular detail Ms Alva’s point on the use of the Chinese character for outside in his notebook and his explanation for that.  I found him wholly believable and his actions were in accordance with normal police procedure. I also note that normal police procedure is for the arresting officer to interview the arrestee and that was done in this case.  I also note that it would have been acceptable for DPC 4980 to interview the defendant without an appropriate adult because of his age and yet he had still advised him to ring to have a family member present and given him every opportunity to find one despite the hour of the day.  DPC 4980 was prepared to wait a significant amount of time for the defendant’s elder brother to attend.  I could find no fault with any of the other witnesses.  It is clear on the papers that DPC 6123 was the exhibits officer and that the arrest of D1 pre-dated that of the defendant.  I do not accept therefore that DPC 6123 would break off from his recording and guarding duties in respect of the exhibits including approximately 6 kg of dangerous drugs in order to follow a young man who had said nothing of any consequence having rung the wrong door bell.  There would have been no logical reason why he would have been at the door at that stage and every reason why other unassigned officers would have been in the living room adjacent to the door and could deal with it.  I also do not accept that DSgt 58725, who was in charge of the events, would leave his post adjacent to 6 kg of dangerous drugs and his arrested person, in order to follow the same young man when he had other officers who could do so.

18.I do not accept the defendant was assaulted.  If the defendant had been assaulted, I would have expected him to know what injuries he received as a result if any and I would also have expected him to make a complaint to the Station Sgt about his treatment.  It could be that the injuries were slight but I would expect him to be able to say so.  As Ms Alva submitted, it does not matter what force was used nor what injuries he incurred, any assault and any threats will do if it renders his will susceptible to manipulation.  But I note that the defendant did not ask for medical assistance and under cross‑examination he said he had not “paid attention” to any injuries later when at the police station.  He made no complaint to his brother nor to the magistrate when he first appeared before one.  Nor did he do so thereafter even though he was represented.  I do not accept that the defendant was taken to a rear stairwell and assaulted or threatened by any officer.  I find the incident occurred as related by DPC 4980 who was with the defendant throughout and the evidence from beginning to end was entirely consistent with what the defendant said voluntarily in interview which was in essence that he had simply introduced one friend to another and no more.  It is arguable whether any such words were in fact admissions against interest.  This ruling assumes the post record comment and the VRI contain such admissions only for the purposes of argument.

19.This is a case, on the voire dire as to involuntariness, as Mr Laskey pointed out, which rests upon two wholly conflicting accounts of events.  The improbability of officers leaving their allocated posts guarding a defendant and a large quantity of drugs is marked. As is the idea that five police officers would assault a young man without cause.

20.To the extent that it can be said he made any admissions against interest I find that everything he said when he was at the doorway of Room 3905, after arrest and caution and in the VRI were made voluntarily.  They are admissible in evidence.  The VRI subject to appropriate editing, and any further argument as to other matters, P68, is admissible in its edited form.

Mr Edward Laskey, counsel‑on‑fiat, on behalf of the Department of Justice, for HKSAR

Ms Patricia E Alva, instructed by Tony Kan & Co, assigned by Director of Legal Aid, for the defendant