HKSAR v. Tsui Chi Wai

HCCC 290/2020

[2022] HKCFI 1963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 290 OF 2020

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Dates of Hearing:  16 & 17 February 2022

Date of Ruling:  21 June 2022

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R U L I N G

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1.This is an application by Mr Newman Wong on behalf of the defendant, to render inadmissible an admission against interest arising as a result of his first arrest and caution on 8 October 2016, for trafficking in approximately 38.7g of Cocaine under Count One. No admissions are alleged to have been made under Count Two.

Grounds of Objections

2.In his grounds of objections, the defendant submits:

“1.  At around 9 am on 7^th October 2016, when the Defendant was outside Flat A 31/F Riviera Lodge, he was suddenly grabbed from behind by police officers who were laying ambush behind the door leading to the staircase. The officers had not made known their police identity at that stage. In the struggle which followed, the defendant and the officers moved from the area behind the door (ie. the staircase landing)  back into the corridor. In the course of the struggle the Defendant’s neck and arms were grabbed; he was pinned to the ground and his leg was kicked before he was eventually handcuffed. DPC 8368, DSgt 34311 and DPC 6264 took part in the attack. DSI Ho, DPC 5788 and one or two other officers were also present at a later stage.

2.  After the police gained entry into Flat A with the defendant’s keys, the defendant was taken straight into the master bedroom in which he was assaulted by some of the above officers (including blows to his ribs, abdomen and face. After the assault, the defendant was shown 2 bags/packages by Sgt 34311 and was asked by different officers to admit to owing them.

3.  Although the Defendant’s case is that he did not make the verbal admission as alleged, given the physical violence he was subjected to, the Court is respectfully asked to rule it out.”

3.When distilled down to its bare bones, what Mr Newman Wong submits is this.  The prosecution allege that, at the time of his arrest, the defendant said “I came up intending to get some Cola for consumption. I didn’t know who you people were, so I struggled”.  The defendant made no such admission against interest.  He accepts that this would ordinarily not require a Voire Dire, as there would be no issue as to voluntariness for the Court to decide.  It would ordinarily be a matter for the jury.  However, if the Court were of the view that there had been such an admission, then the circumstances in which such an admission was made was such that it was involuntary and therefore, it would be prudent to hold a Voire Dire on this alternative submission.  In addition, it is submitted that whilst the admission in question allegedly took place in quite limited circumstances, the defence wish to extend their cross-examination further, and beyond that limited timescale, so as to support their challenge as to the credibility of the three material witnesses.  Those witnesses being DPCs 8368, 6264 and DSgt 34311.

Prosecution Case

4.All three officers gave evidence.  They maintain that they were briefed at 0800 hours on 8 October 2016 as to an anti-dangerous drug operation to be carried out at Flat A, 31/F, Riviera Lodge, Tai Po.  The operation was specific to a location but not to any specified person.  They had no knowledge of the defendant at that time.  They had been instructed to arrest anyone seen to be leaving the premises.  The team consisted of six personnel but only the three officers in question went up to the 31/F to lay in ambush outside Flat A and shown in P59/2.  The other officers remained outside of the building and in support if needed.  Those officers included the OC and two WDPCs.

5.At about 09:19 hours, DPC 8368 observed the defendant enter the flat.  At 09:19 hours, he was seen to leave the flat.  At this point, the officers came out of the stairwell, identified themselves and apprehended the defendant.  He sought to flee and therefore they restrained him resulting in him eventually being pinned down on the floor.  A search was carried out of his cross shoulder bag.  Two packets of suspected dangerous drugs were found within it and he was arrested and cautioned.  In reply he said “I came up intending to get some cola.  I did not know who you were, so I struggled”.  Thereafter, he was taken into the flat where a search of the flat took place, which he witnessed.  Further drugs were found and he was arrested and cautioned once more for those drugs.  He refused to sign the Notice to Persons in Custody and the Post Record.

6.No half time submission was made.  Having heard the prosecution witnesses, I found that the prosecution had shown a prima facie case of voluntariness.

Defence Evidence

7.The defendant gave evidence.  He told the Court that he had gone to the flat much earlier that morning and then had left to go for breakfast with a friend.  He maintained that he had returned on his own to Flat A shortly after 9:00 am and had found the lock to the metal gate had been prised.  He had stood for a few minutes attempting to fix it but could not get in and had therefore turned to go back to the lift lobby when he was set upon by DPCs 8368 and 6264 from behind.  Each one grabbed his right and left upper arm respectively.  They had not said who they were and therefore he struggled with them.  He used his right hand to open the fire door to the rear staircase as he felt he could fight them off and subdue them in a tighter area.  He told the court this was because he was a Thai boxer.  Once inside the staircase area, he had seen DSgt 34311 and one other officer who came to support DPCs 8368 and 6264 but he managed to struggle free of all four of them and go towards the staircase up to the 32/F.  However, at this stage he saw five to seven people coming down which included DSIP Ho, two WDPCs, DPC 5778 and others.  He maintains he still did not know they were all police officers and he became scared so he went back through the door into the corridor outside of Flat A, at which point he was grabbed by DPCs 8368 and 6264 again.  He could not break free even though he struggled.  He was kicked by DPC 6264 and he fell to the ground along with DPC 8368; then he was pulled up and sat on the floor whilst DPC 8368 handcuffed him from behind.  Only at this point did he realise they were police officers.  Then he was pinned down, hitting his forehead on the ground and having the right side of his face pinned to the floor.  Throughout the struggle he had a bunch of 15 keys in his left hand, which DPC 6264 now grabbed and then went to open the door, which he managed to do.  He was not body searched whilst on the ground; the officers did not find P4 and P5 in his bag and he was not arrested and cautioned.  It follows that he did not make any admission.

8.When DPC 6264 opened the doors to the flat, he, DPC 8368, DPC 6264 and Sgt 34311 went into the flat and straight into the bedroom identified on the sketch plan as Room 2.  The door to Room 2 was closed behind them and he was assaulted by these three officers and others for 15 minutes.  He was continuously beaten and kicked.  In particular, DSgt 34311 elbowed him in the pelvic bone area and DPC 8368 punched him in the same place, whilst DPC 6264 punched him on the left hand side of his face.  He fell down onto the mattress which was on the floor and sat there.  DPC 8368 had come into the room with the two packets (P4 & P5)  containing a smaller amount of suspected dangerous drugs and told him to admit them.  At some point each of the officers, DPC 8368, DPC 6264 and DSgt 34311 had tried to persuade him to admit them.  He had refused.  DSgt 34311 had suggesting framing his mother in law with the drugs and then offered him a cigarette.  At no time did he witness a search in the flat.

Defence Submissions

9.The current COVID situation resulted in submissions being submitted in writing with the agreement of both parties so as to be in a position to recommence the trial as soon as possible when the court diary permitted.  Mr Newman Wong submitted that the Court could not rely upon the evidence of the three prosecution witnesses.  Firstly, because they had time to “get their story right” and because that story was inherently improbable.  On a lesser point, the defence also submit that the evidence as to the exact location in which the stop, search and seizure took place was not exactly the same as between the officers.

10.The defence also seek to pray in aid the refusal to sign a Notice to Persons in Custody and the Post-record, as evidence in support of his version of events.

Prosecution Submissions

11.Mr H.Y. Wong, in reply, submits that it is common ground that there was a struggle.  That struggle was caused by the defendant resisting arrest and only necessary force was used.  The medical evidence bears this out.  Only two officers were involved in that interception and that was DPCs 8368 and 6264.  No back up was necessary, hence the Sgt remained in the stairwell.  Having been restrained, the defendant was searched and the suspected drugs found in the shoulder bag P9.  The keys to the flat were recovered from the same bag.  Those keys also linked him to the flat as did the fact that he had been observed entering and exiting the flat shortly before.

12.As for the remainder of the evidence, which focused upon the credibility of the officers, Mr H.Y. Wong submits that the evidence of the defendant does not bear inspection. The evidence of the defendant was inherently improbable in many respects.  He cannot be believed.  The evidence of the three prosecution witnesses was credible and the prosecution has proved beyond reasonable doubt that the admission was made voluntarily and not as a result of any force inflicted upon the defendant.

Analysis

13.As is always the case, all witnesses, both prosecution and defence, will be treated on the same footing before the Court on the Voire Dire even though the evidential test differs.  As a consequence, it must be the case that both parties are in a position “to get their story right” when there has been a significant period of time between the material events and this Voire Dire, not least because this exercise has been rehearsed in the previous trial.  It will, as is usually the case, boil down to whom the Court believes and not how many witnesses have been called.

14.As for inherent improbability, there is, in fact, more logic to waiting for someone to exit a flat than to wait for someone who wishes to enter a target location.  Stopping someone who wishes to enter may have no evidential value unless they are later found to be linked in some other way to the location or are carrying incriminating evidence, whereas stopping someone who is leaving the location guarantees the investigating team a link.  As for alerting those who may be inside the location, that is an issue of balance.  There are advantages and disadvantages to the proposed instructions and I do not believe that one course of action is any less fraught with possible difficulty than the other.

15.Whilst Mr Newman Wong argues that police procedure and regulations are subject to some degree of flexibility, I find that somewhat disingenuous in the given circumstances where he also wishes to rely upon the lack of application of correct procedure to criticise the very same officers.  Their evidence was that they were required to identify themselves, to stop, search and seize and when they had reasonable suspicion, to arrest and caution.  I do not find the argument of the defence that they should not have shouted, and should not have stopped the defendant when they did, very attractive.  How then were they supposed to stop the defendant as he entered the flat?  By whispering and taking him away from the door and around the corner after he had placed keys in the lock and alerted anyone inside that someone was trying to enter?  It is all far too speculative.

16.The Court of Appeal has said on numerous occasions that a minute dissection of evidence is often unhelpful.  In this case a dissection of exactly how long the corridor was, at which point the defendant was when first apprehended; at which point he was when forced to the floor, does not assist the defence.  If the officers had time to ‘get their story right’, there would be no such discrepancy.  As it is, any discrepancy was immaterial and could be put down to the passage of time.  The evidence was out by a meter or so and no more.  Just as some of the discrepancies in the defendant’s evidence could be said to be less clear than as originally advanced and others might be said to be inherently improbable.  I note for example, that the number of unidentified officers had been increased not only from the last trial but from the case as advanced in cross-examination of prosecution witnesses.  I also note that the defendant suggested that he could take on four officers at once but that he agreed he was subdued in the end by just two officers.  Last but not least, I note that the defendant suggests that he was beaten for over 15 minutes in Room 2 and yet his injuries were minor and consistent with simply being restrained on the floor.  When considering the credibility of any witness, the Court has to balance the issue of memory loss or a less than perfect recollection of events with the possibility of exaggeration or motivation to tell less than the truth.  This is a balancing act which the Court is well placed, with long experience, to carry out.  Both parties have to be given some degree of latitude whilst remembering where the evidential burden is placed.

17.The preliminary issue before the Court is whether the admission against interest said to have been made by the defendant just after arrest and caution was made by him whilst outside Flat A on 31/F of the Riviera Lodge.  The defendant does not accept that it was made.  To that end I find, for the purposes of this Voire Dire, that it was made.  This will of course be a matter for the jury to decide in the trial proper.  The defendant submits, in that event, that it was made involuntarily as a result of the earlier assault. I have considered whether it was made as a result of either oppression, threats or fear of threats, inducements or as a result of anything said or done by the officers then present.  The defendant maintains if it was said, it was said as a result of the physical assault by all three officers.

18.The defendant’s account does not hold water on so many levels. Included amongst the many wholly unbelievable statements, as already mentioned, is the suggestion that he was the subject of a more than 15-minute assault by several officers in the corridor, stairwell and bedroom, when his physical injuries amount to a couple of areas of redness and no injury at all in areas which he specifically highlighted as having been the location of punches and blows, albeit after the admission.  He also maintains that at no stage did the officers carry out anything resembling normal police procedure including the initial body search to ensure he had nothing concealed which could harm them or himself.  He also says he could not open his flat door for several minutes because it had been tampered with.  This delay covers the period of time the prosecution say he was inside of the flat on the second occasion that day.  He maintains he was trying to fix the lock for over seven or so minutes despite having no tools and despite agreeing that he had used the same key earlier that day and the fact that the officer gained entry without any problem just moments later.

19.I have seen and heard all three officers in court.  I do not accept these officers did anything more than their duty in seeking to restrain the defendant and that any injuries which he suffered were as a direct result of his resisting arrest.  It would be very difficult to detain someone, who did not want to be detained, and not cause him some minor harm and I find the harm in question was indeed minor.  It was not the type of harm which would have arisen if the allegations made by the defendant were true.

20.At the time that the defendant made the relevant admission, he had been detained.  The officers had made themselves known to him, had carried out a lawful search and had recovered what was suspected to be dangerous drugs.  As a result, and in accordance with normal police procedure, DPC 8368 arrested and cautioned the defendant for trafficking in dangerous drugs and for resisting an officer in the execution of his duty. The defendant had been told his rights.  He would have known he could remain silent.  Instead he made an admission against interest which I find he made voluntarily.  This evidence is admissible before the jury as it currently stands.

Mr Wong Hay Yiu, counsel on fiat, for HKSAR

Mr Newman Wong, instructed by Boase, Cohen & Collins, assigned by Director of Legal Aid, for the defendant