HKSAR v. Hui Ka Lok, Sam

HCCC 148/2020

[2021] HKCFI 3192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  22 October 2021

Date of Ruling:  25 October 2021

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R U L I N G

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1.This is an application to render inadmissible what was allegedly said by the defendant after arrest and caution and any documentary evidence relied upon in support i.e. AE 724-751, the officer’s notebook. The allegations are:

(i)  That C&E officers surrounded and threatened the defendant by pointing firearms at him when he was sitting in a vehicle;

(ii)  They did not declare arrest nor was the defendant cautioned;

(iii)  They used foul language;

(iv)  The defendant was told to shut up;

(v)  The defendant was forced face down to the ground and was handcuffed behind his back;

(vi)  A post record was not made within the warehouse;

(vii)  It was not explained or read over to the defendant and the defendant did not sign the notebook entry at 20:40 hours on 27 August 2018 but instead he signed it on 28 August 2018 at 01:00 hours, at which time he:

a)  was directed by an officer to sign at certain points; and

b)  was not given the opportunity to read what it contained; and

c)  did not have it explained to him, and

(viii)  On 28 August 2018 and before the notebook entry was signed by the defendant he was induced by another officer to cooperate when that officer said that “if he were to cooperate, and sign the notebook, he would be released in three months.”

2.The defendant could not now independently identify the officers in question and therefore three officers were asked to attend to give evidence on the Voire Dire, which Mr Boyton accepts were the three officers who dealt with the defendant that day.  They are COs 0785, 07334 and 1482.

3.CO 0785 gave evidence that he had driven up behind the defendant who was sitting in the driver’s seat of a car outside of the warehouse in question.  He had identified himself and shown his warrant card. The defendant had been cooperative and exited the car.  He had been arrested and cautioned at that stage in respect of the events on 22 August when the container had originally arrived into Hong Kong containing the dangerous drugs.  He had done this in Cantonese but believed that the defendant understood what had been said.  He then asked him a number of questions to which the defendant responded.  This was done in Cantonese.  He had told the officers he had driven someone to the site for reward which was $5,000.  He did not know who had called him as there had been no caller display and he could not find that person.  He had taken over the car from someone else and there were two people in the car at that time.  He then identified the two people he had driven to the warehouse as the other two defendants in the case.  They had gone inside the warehouse and the officer had made a post record of the arrest and caution plus questions and answers in to his notebook VDP204.  By this time CO 07334 had gone through the Notice to Persons in Custody exercise as his guarding officer and had informed CO 0785 that the defendant could not read or write Chinese.  As a result, the officer had his notebook entry translated into English, however he nevertheless read it out to the defendant in Chinese before CO 1482 read it out in English and gave the defendant an opportunity to read it for himself and to write the declaration.  He then signed it in their presence. When they returned to the Headquarters, the officer was present for the body search and afterwards he copied the notebook and provided that copy to the defendant to be placed in his personal property.  He kept his notebook with him thereafter until after the Video Recorded Interview which took place some hours later in the evening of 28 August.  After the VRI, he handed over his notebook to his superior officer.  That evidence was corroborated by the other two officers where applicable.  There was a prima facie of voluntariness.

4.The defendant gave evidence upon the Voire Dire.  He maintained that he was present because he had driven two people to the scene and was waiting for them under the instructions of his boss.  He had noticed the officers get out of their vehicle carrying weapons.  An officer had grabbed him and forced him out of the vehicle forcing him to the floor face down.  He had tried to ask what was happening but had been told to shut up and had been handcuffed with his hands behind his back.  He was then taken inside of the warehouse and forced to sit on the floor facing the wall.  He does not say whether he was arrested and cautioned or at what time but he does say that he never said that he was to get a reward of $5,000.  He maintained that he had not signed anything within the warehouse.  He was in a room at C&E Headquarters at North Point when an unidentified officer had come into the room and told him to sign the notebook and the different places to sign as the defendant put it, “here, here and here”.  He did this because that officer had said if he cooperated he would be released within three months.  This conflicts somewhat with his later evidence under cross-examination when he said he had never initialled the notebook in various places.  He also stated that he had only signed the Notice to Persons in Custody inside the Headquarters, although he accepted this document was in English and that the time and date on the document indicated that he had signed at an earlier time.

Submissions by the Defence

5.Mr Boyton relied in closing upon an apparent inconsistency in timing between the evidence of VDPWs1 and 2 in respect of the car search at the scene and the timing of the provision of the Notice to Persons in Custody.  He pointed to that evidence in an effort to undermine the credibility of the officers.  He maintains that the prosecution had not proved beyond reasonable doubt that the admissions made at the scene and the signing of the notebook to verify those admissions were given voluntarily.

Conclusion

6.I disagree.  CO 0785, 07334 and 1482 gave what appeared to me to be credible evidence.  It was not undermined as to timing. There clearly was a body search carried out by CO 07334 who was the guarding officer and he would have been expected to also provide the Notice, which bears the defendant’s signature.  Indeed, it was CO 07334 who discovered the defendant could not read or write Chinese and notified CO 0785 in order for CO 0785 to have an officer present to translate the post record.  How else would that have come about unless there was some form of documentary evidence and exercise?  One therefore necessarily logically followed the other.  There is equally no doubt that the car was searched and that would have been undertaken by the officer who was not the guarding officer.  If those exercises, in some small part overlapped in timing, I am not going to hold it against them especially as it was not directly put to them to give them an opportunity to explain why there was an apparent overlap.  I have no reason to disbelieve them.  They denied all of the allegations put to them.  I have no doubt that the whole of the post record procedure was carried at the location of the warehouse and thereafter that the notebook was kept in the possession of CO 0785.  It would therefore be impossible for some unknown officer to be in possession of it in order to induce the defendant to sign it when in the C&E Headquarters. Given that rejection, the credibility of the defendant is undermined as to what occurred at the time of arrest and caution.  I do not accept that with an operation as important as this one, that the C&E officer who was to arrest and caution the defendant would not carry it out properly.  The defendant cooperated throughout and therefore there would be no need for force or a display of force as there were only three suspects within the location at that time.  I do not accept he was dragged out of the car or forced to the ground and handcuffed.  As I have no other evidence of his state of mind at that time there is no foundation to indicate his will was overcome either by fear of assault or by reason of inducement in order to render inadmissible the admissions he made upon arrest and caution, which I found to have been voluntarily made.

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Y.K. Lau & Chu, assigned by Director of Legal Aid, and Ms Kirsteen Lau, instructed by Y.K. Lau & Chu, on pro bono basis, for the defendant