HKSAR v. Ali Haidar

HCCC 2/2018

[2022] HKCFI 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2018

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  18-22 February 2019

Date of Ruling:  22 February 2019

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R U L I N G

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1.This is an application by the defendant, Ali Haidar, to seek to have ruled as inadmissible P18, the post record of the arrest and caution and his VRI P28. The prosecution does not now seek to rely upon the post record and accordingly I do not intend to rule upon it.

2.The defendant maintains that the admissions against interest made in the VRI were not made voluntarily. In addition, and alternatively, the consent ha gave to allow the interview to be conducted in English was not an informed consent because of the manner in which he had been treated by the police and because he had not had the benefit of an interpreter. In the further alternative, the defence ask the court to exercise its residual discretion to exclude any admissions made in interview on the basis of unfairness to the defendant because of the failure by the police to provide an interpreter.

3.This latter argument was further crystallised by Mr Kelly in his closing submissions on behalf of the defendant. He relies heavily upon Direction 6(a) of the Rules and Directions for the Questioning of Suspects and the Taking of Statements and upon the need for the prosecution to establish that the defendant was “proficient in English”. Mr Kelly accepted that a breach of the Judges’ Rules, as they are known, does not of itself render an admission inadmissible. If there is such a breach, it is a factor to be taken into account. If the alleged breach is substantial and significant, that may lead the tribunal to exclude a confession in the exercise of its inherent jurisdiction. However, Mr Kelly’s ultimate point can be reduced to this. Even if the Court is satisfied beyond reasonable doubt that the police officers told the truth and therefore find that the defendant was not coached as to what to say in interview and even if the Court found that the defendant was aware of what he was saying in English when he made the admissions, his admissions should nevertheless be excluded on the basis that this is a very serious matter and that his English is not sufficiently proficient for him to fully realise the serious difficulty he was in and therefore to make an informed choice about how best to proceed. That was Mr Kelly’s ultimate plea on behalf of his client in addition to those outlined above.

4.Mr Ma, on behalf of the prosecution submits that the police did nothing wrong. They carried out their job throughout in accordance with normal police procedure. There was no dishonesty in the manner in which they handled the issue of the lack of interpreter and they had made enquiries to obtain a Hindi interpreter which were not fruitful. This was a simple matter. It was merely the issue of a black rucksack full of cocaine and the defendant knew full well he had been caught red-handed. His admissions were made voluntarily and, even with a Hindi interpreter, the admissions would have been made.

5.As is often the case, this voire dire relies upon the view the Court takes of the credibility of the witnesses. The two versions of events are incompatible with each other.

6.The prosecution say that, working on the information received, they carried out an operation to intercept a South Asian male in the Sheung Shui area who was believed to be trafficking in dangerous drugs. On arrival at Sheung Shui at just 1.00 in the morning on 25 January 2017, they intercepted the defendant, identified themselves and asked for his ID, which he gave them. The AO asked to search his bag at which point the defendant thrust it at him and attempted to flee but was subdued by the other two officers present and brought to the ground. The AO then searched the bag and found him to be carrying what they thought was 8kg of cocaine in his rucksack. The officer in charge was called to the scene and because the defendant was Indian and did not respond to the arrest and caution in Chinese, he was communicated with in simple English. Although the arrest and caution had been carried out in Chinese, it had been repeated, as to the arrest only, in simple English by the AO and the defendant had answered that he understood in English. He had then been handcuffed and taken to an unmarked police vehicle where the post record was written up by the AO and a POL 153 served. The POL 153 had been explained to him in simple English by Inspector Charm and he signed as understanding his rights. Inspector Charm had told him inter alia of his rights with respect to having an interpreter. The forensic team arrived and the DD were taken out and photographed in the presence of AP. According to the officers, he knew he had been arrested and he was aware that he had been arrested for the DD found upon him. He could have been under no illusion as to that. They took him first to Sheung Shui Police Station as is the normal practice, to have him processed and then to Police Headquarters, where he was further processed and a further POL 153 served in the same manner as before by the AO and Inspector Charm. At 0551-0664, he was subject of an interview in English in which he made clear admissions that he was trafficking in dangerous drugs.

7.The defendant says that he had no DD on him that night. He had come from Tsim Sha Tsui Chungking Mansions to Sheung Shui in a taxi in order to attend a party for someone who was leaving to return to India. Although he only received $200 per month, he had taken a taxi and not public transport because he was not familiar with public transport to Sheung Shui and he had borrowed the money in any event from a friend as his host that evening was going to pay for his transport. As he was in the process of waiting to find out where to go, an unmarked vehicle drew up in front of him; three officers in plain clothes got out and one of them came up to him and slapped him on the face twice. The other two forced him to his knees with his face on the ground. He was then punched more than once in the ribs by the first man from behind (whom we know he says is Inspector Charm). At this point no one had spoken and he did not know what was happening. At some point a further car drew up and a female talking in Chinese to the others mentioned a CCTV whereupon they moved him a few metres away to a tree where he was guarded by the two officers. No other assault took place and no one said anything to him. He was eventually placed in the 7 seater vehicle with someone to his right (the AO) who was writing in a notebook. Inspector Charm then went to the rear of the vehicle, took out a black bag and told him the bag belonged to him and he was to say as he was told. He had replied “I don’t know”. Charm took the bag away and then returned and said “Don’t worry, whatever is said to you, you do like that”. According to the defendant the vehicle remained in that position for 40-45 minutes and the vehicle then moved to the opposite side of the carriageway and came to a stop where he believed photographs were taken as he saw flash light even though the curtains were closed. He did not observe any DD being photographed. According to the defence therefore, he had no idea at this point that the black bag contained DD. When he went to Sheung Shui Police Station he did not see the contents of the bag there either and still did not know he had been arrested. Everyone spoke Chinese in Sheung Shui Police Station. The DO did not speak to him and he did not speak to the DO. In chief, he said that in the vehicle Charm had promised that if he did as he was told that he would just get 6 months. He only learnt he had been arrested after he arrived at Police Headquarters. He had not been advised of his rights. He did not know the amount of cocaine alleged to have been in his possession until the video recorded interview. He only knew that the bag contained cocaine because Charm had told him so. It was in Police Headquarters that Inspector Charm entered a room he had been placed within (Room 1) and told him to do as he was told and to repeat the story told to him by Charm or to say “yes” or “OK” to all questions put to him interview. At this stage in chief, the defendant said he did not understand what was happening to him, and asked for a Hindi interpreter but Charm had refused. In chief he said he did as he was told because he was scared and thought they would take his life. Under cross-examination, the defendant says he did not understand what Charm was saying at this point and so had no view upon whether he would cooperate or not although he agrees that he understood cocaine was involved but not how much. He says as Charm had been the one to assault him earlier, he was scared of him at this point. The defendant maintains there were two interviews and not one. In the first, he had been silent and the interview had been interrupted by someone with whom Charm spoke. He had then been taken to the toilet and had been threatened by 3-4 officers including Charm when Charm said “do as we say” in an angry voice. Because of this, when he returned to the interview room he related the story which he had been told by Charm.

8.I make it clear that the voire dire covered matters ordinarily not to be canvassed at this stage of trial for it is not for the Court to take a view of the guilty or innocence of the defendant. It is for this court to ascertain whether the admissions made were voluntarily made and, in this case, whether it was fair in all the circumstances to have carried out the various police procedures in English including, most importantly, the VRI. I make reference to all of the police procedures including the two POL 153s and the visit to Sheung Shui Police Station because these form part and parcel of whether the defendant was in a position to give informed consent.

9.To that end, much has been made of the defendant not being provided with a Hindi interpreter. He says he cannot speak any Cantonese and speaks only a little English. In the three years he has been in Hong Kong he has had no need to learn or speak Cantonese and has spoken English only when dealing with the authorities, which he did on a regular basis as he would need to report to both the welfare department and to immigration. Other than that, he says he speaks Hindi or Urdu with his friend in Chungking Mansions. As a consequence, he did not understand he was arrested, could not read the POL 153s, which were in English and they had not been explained to him in any language at any stage. When he signed several documents after the VRI, he did not know what he had been asked to sign. The defendant submits that, whilst he spoke in English in the VRI, he should have been provided with an interpreter as he had asked for one on several occasions but had been denied.

10.The issue of whether the defendant understood what was happening and could understand simple English is one which underpins his whole argument. The difficulty the defendant faces is this. I have had the opportunity to see the VRI. It is clear from the VRI that he is comfortable and talking freely. His body language and facial features give no trace of concern, quite the opposite. The defendant has a tendency to smile. He has done so throughout this voire dire, and he was doing so throughout the interview. I noticed that not only did he manage to communicate sufficiently well in English, but on occasion he answered a question in Cantonese from the interviewing officer before it had been translated into English. I noted that in evidence before this Court, he sometimes answered a question put by counsel in English before it had been interpreted and he answered my questions on occasion before interpretation. It may be that he cannot read English, but I take the view that he can understand simple English and communicate effectively in English. I further take the view that he was sufficiently proficient that words to the effect “you are under arrest for trafficking in dangerous drugs” would be something he would have understood. By that I do not suggest he was personally involved with trafficking in dangerous drugs at any stage but the block is well known in law enforcement circles and a longstanding resident could not possibly be unaware of the many visits by police and the reputation which it had. Indeed, he hinted at it in his evidence when he said that he required his Form 8 to provide to officers when stopped.

11.Whilst it would have been preferred to have a Hindi interpreter, there was not one available. Where a defendant can communicate in English and where he agrees to undertake an interview in English, I see no reason why that should found a basis for exclusion without more, especially in the circumstances of this case where the facts were indeed very simple. It is clear from his own evidence that he had understood everything he had been told by Charm prior to the interview, otherwise, how else had he been able to repeat it when in the VRI. This was not a case, on the defendant’s own evidence, that he had not understood the English spoken to him even though had had at one stage attempted to suggest this was the case.

12.Did the defendant understand the position he was in? I find that he could not have failed to understand the position he was in. I accept the officers were in plain clothes but they identified himself when they intercepted him. They requested his ID and they asked to search his bag. Who else would do that? He knew he was in trouble because he attempted to flee and had to be subdued. He was handcuffed. Who else could these men have been and what else must have been happening other than he had been arrested? This is not taking into account the fact that the AO told him so in English. I accept that Inspector Charm explained to him his rights under the POL 153 and in particular his right to a lawyer and his right to an interpreter. I do not accept that he was not properly processed by the DO in Sheung Shui Police Station. By that stage at the very latest he would have been aware that he was under arrest and he would have known what for and seen the DD in question because that is standard procedure for a DO in these circumstances.

13.What about the assaults which the defendant said took place at the time of arrest and thereafter the threat in the toilet? The inducement of receiving 6 months’ imprisonment seems to have fallen away as the defendant did not give further evidence that it acted upon his mind at all. According to Mr Kelly, his will had been suborned by the assault at the scene and the threats in the police station. Did they occur?

14.The main protagonist according to the defendant was Inspector Charm. I hope he will not be offended by me saying he appears to be a middle aged man of rotund build and mild mannered. Nothing about his demeanour suggested the type of person who takes pleasure in beating someone up for no good reason. He certainly was not arrogant or condescending in evidence nor did he refer to the defendant in a demeaning way. He gave evidence in a measured and what I believed to be truthful way. I remind myself that for the defendant’s version of events to be correct, the whole team of 6 police officers would have to be in this conspiracy for it must have been a conspiracy to plant 8kg of cocaine on a person not known to the police who happened to come across at 1.20 in the morning in Sheung Shui. There was no other evidence of any assault as no complaint was made at any stage. Why then would that person need to be assaulted on interception? Would it be to ensure he agreed to be a scapegoat? Why would they need one? And if so, then you would expect the threatening behaviour to be maintained but after the initial alleged slap and punches, no other physical assault occurs save for a push towards the toilets and an angry “do as you are told”. There is no inducement such as the possibility of bail. The defendant did not see there was any benefit to him to lie save that he thought he may get beaten up indeed at one point he said that he feared for his life. If he is telling the truth, his fear for his life was not borne out by the degree of assault and threats.

15.I have listened carefully to all of the officers whom I accept carried out their jobs in a professional manner throughout. I do not accept Inspector Charm punched the defendant or slapped him or assaulted him. I do not accept others stood by whilst he did so. I do not accept the woman police officer aided this conspiracy by telling them to move out of the view of a CCTV camera. I do not accept that he was not given a POL 153 at the scene and I find that he understood in simple terms his most important rights including his right to an interpreter. This is evidenced by his signature upon the document. I find he was present when the contents were photographed. Thereafter he was taken to Sheung Shui Police Station and then to Police Headquarters where he was processed in the manner described to the Court by the officers. There was only Room 1740 used in which to detain him, he was guarded throughout, there was no one on one encounter with Inspector Charm in which he was coached and there was only one visit to the toilets which was uneventful. There was only one interview in which he made the admissions I have viewed.

16.Given I have made those findings, should I nevertheless exercise my discretion to exclude the VRI because it was unfair to have undertaken this interview without a Hindi interpreter present? If the defendant had not appeared to be as clearly intelligent as he showed himself to be in evidence and if he had appeared to be confused or reticent in interview I may have taken the view that the admission of the VRI and his confession may have been unfair. But I find that he appears to be an intelligent young man, fully aware of his position and both capable and confident. I believe he knew full well what he was saying and did so voluntarily and I believe that if he had bene provided with an interpreter the outcome would have been no different. Therefore, I find the admissions in the VRI made voluntarily and I do not exercise my discretion to exclude that evidence.

Mr Henry Ma, counsel on fiat, for HKSAR

Mr Shaun Kelly, instructed by Mohnani & Associates, assigned by Director of Legal Aid, for the defendant