HKSAR v. Zuniga Melvin Adrian Flores

DCCC 257/2022

[2023] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 257 OF 2022

________________________

________________________

_________________

REASONS FOR VERDICT

_________________

A.  Introduction

1.The Defendant, Mr ZUNIGA Melvin Adrian Flores, is facing one count of burglary (Charge 1) and one count of possession of dangerous drugs (Charge 2)^[2]. 

2.The Prosecution basically alleges that on or about 24^th September 2018, in Hong Kong, the Defendant entered as a trespasser into a restaurant that he worked before, known as “Chi Chi Cham” and stole therein cash of about HKD $3,000; and 3 days later when he was arrested on 27^th September 2018, near Arbuthnot Road, Central, certain cannabis was found in his possession.

3.The Defendant pleaded guilty to Charge 2 but not guilty to Charge 1.  Basically, his case is that he was not the person depicted by the CCTV of Chi Chi Cham, and the admission he made in his Video Recorded Interview under caution (the “VRI”) was induced and threatened by the police involved. 

4.The Prosecution’s case relies almost entirely on the VRI.  The trial mainly concentrates on the admissibility of the VRI; and if it is admitted, how much weight the court should put on it. Parties agree the court should adopt an alternative procedure to handle the matters concerning the admissibility of the VRI.

B.  Background

5.The Prosecution bears the burden of proof to prove this case beyond reasonable doubt, it has to prove each and every element that it relies on beyond reasonable doubt.  The Defendant does not have any burden of proof and has benefit of doubt.  If the Defendant’s case is true or likely to be true, it is to his benefit that he should be acquitted. 

6.According to section 11(1)(b) of the Theft Ordinance, Cap.210, the elements of Charge 1 are as follows:

a. A person having entered any building or part of a building as a trespasser; and

b. He steals or attempts to steal anything in the building or that part of it.

7.In general issue, the Prosecution is required to prove the above elements beyond reasonable doubt.  In special issue, the Prosecution is required to prove the VRI was obtained fairly and legally and the Defendant provided his confession voluntarily.

8.No matter in special issue or general issue, the Defendant has no burden of proof and has benefit of doubt. After I ruled that there was a case to answer in the special issue, the Defendant elected not to give evidence and not to call any Defence’s witness. It is his rights and I will not draw any adverse influence on it; however, it means, in the special issue, there is no evidence from the Defence to rebut, counteract or undermine the evidence that against him from the Prosecution. After I ruled there was a case to answer in the general issue, the Defendant elected to give evidence but did not call any Defence’s witness.

9.Even though I knew that the Defendant had pleaded guilty to Charge 2, he would not suffer any prejudice. 

10.In this trial, the Prosecution called 2 witness, they were PC10998 (“PW1”), the arresting officer and PC15990 (“PW2”), the investigation officer, who took the VRI from the Defendant.

11.For the purpose of the voir dire, originally, the Notice to Persons in Police Custody signed by PW1 was marked as Exhibit PP2; that signed by PW2 was marked as Exhibit PP3; the disc that recorded the VRI of the Defendant dated 27^th September 2018 was marked as Exhibit PP4, its transcripts in English and in Chinese and English were marked as Exhibits PP4A and PP4B respectively.  After I ruled they were admissible, they formally became Exhibits P2, P3, P4, P4A and P4B accordingly.

C.  The Prosecution’s Case

12.PC10998, PW1, gave evidence, in a gist, as follows:

a. At the early hours on 27^th September 2018, he was on duty. At around 0540 hours, he saw the Defendant was walking down Arbuthnot Road, acted suspiciously by looking around, so PW1 intercepted him to check his ID. PW1 use English to communicate with him. After checking the Defendant’s ID card, PW1 found his name was similar to the person who involved in a burglary case. Then PW1 searched the Defendant and find the Defendant was in possession of dangerous drugs. PW1 requested for assistance and eventually, the Defendant was arrested and brought back to Central Police Station.

13.PC15990, PW2, gave evidence, in a gist, as follows:

a. He was the responsible officer to investigate the burglary case happened on or about 24^th September 2018 at Chi Chi Cham. After the Defendant was brought to Central Police Station and before PW2 finished his work in the morning of 27^th September 2018, inside the Central Police Station, PW2 had seen the Defendant once, to explain to him in English the procedure above to come, a Notice to the Person in Custody would be issued to him, then a video recorded interview would be conducted. Such conversation was not recorded in any written document.

b. At around 1900 hours on 27^th September 2018, after PW2 resumed his duty, he and DPC19421 took the VRI with the Defendant inside the Video Interview Room of Central Police Station, with the assistance of an interpreter. Before the VRI started, PW2 served the Notice to Persons in Police Custody or Involved in Police Enquiries (Exhibit P3) to the Defendant. PW2 also asked the interpreter to explain each and every items on it to the Defendant. Then, PW2, the Defendant and the interpreter all signed on Exhibit P3. After knowing his rights, the Defendant made no request. Then, the VRI started.

c. PW2 confirmed that no police, including himself, had ever induced, intimidated or oppressed the Defendant to confess or to co-operate, the Defendant made the confession voluntarily.

D.  The Defence’s Case

14.The Defendant elected not to give evidence and not to call any witness in the special issue; however, he elected to give evidence but did not call any witness in the general issue. He gave evidence, in a gist, as follows:

a. He is now at the age of 30 and lived with his grandparents. On 24^th September 2018, he did not go to Chi Chi Chum and stole money thereat. He made the confession in the VRI because the police kept saying to him that it was a very small case; and he was induced if he said so, the police officers would speed up the procedure and let him go home soon that he could look after his grandparents. At that time, he believed the police officers. The police officers told him the details of the burglary case and he repeated the same in the VRI.

b. Before the VRI started, the Defendant was brought into a small dark room and PW2 told him that PW2 had watched a CCTV footage and descripted everything of it in details to the Defendant. PW2 told the Defendant that the person depicted in the CCTV was the Defendant, who was wearing Chi Chi Chum’s uniform, with a straw hat on the head and a napkin to cover his face. PW1 and PW2 also spoke to the Defendant very aggressively, and accusing him he had committed the burglary. The Defendant said “NO”, then PW1 and PW2 stared at him, then 5 other police officers came in and out of the small dark room, stared at the Defendant, then left.

c. The Defendant stayed inside the small dark room for around 3 hours. He did not have any breakfast and he complained to the police officers. Then for reason unknown, he was given burger and other food and drinks form the McDonald restaurant.

d. Before the Defendant was arrested, he took a lot of cannabis, and he usually smoke cannabis in every 2 hours. If he did not take cannabis regularly, he would feel uneasy, his legs would shack and his arms would move a lot. In the VRI, he put his head on the table from time to time, as he was having withdrawal syndromes that his head was aching, having a runny nose and his eyes were watering.

e. All-in-all, he did not confess voluntarily in the VRI.

E.  The Voir Dire

15.Ms Panesar, Counsel for the Defence, objected the VRI be admitted as evidence on the ground that it was obtained illegally and unfairly, the Defendant’s confession was made involuntarily. The court conducted a vior dire in alternative procedure to handle this matter.

16.According to the Written Objections to the Admissibility of Admissions and VRI, Ms Panesar’s grounds of objection, inter alia, are as follows^[3]:

a. At the scene of arrest, the Defendant was under the influence of cannabis, he was tired and had a headache. Initially, 2 police officers, then 5 more officers arrived; they surrounded the Defendant and stared at him menacingly. The Defendant was intimidated and scared; the police officers told the Defendant he was wanted in connection with a burglary case. The Defendant was arrested and cautioned at the scene; he remained silent.

b. After the Defendant was brought back to the Central Police Station, he was strip searched, and he was intimidated by that experience. He was then placed in a small dark room and was guarded by PW1 and PW2, then 5 other police officers entered the room, stared at him then left. Subsequently, PW1 and PW2 spoke to the Defendant in a loud and angry tone, saying that they had watched the CCTV footage that found in Chi Chi Chum which depicted him. They told the Defendant how he dressed and what he did during the burglary. They claimed the Defendant was depicted with his face covered with a cloth, and the straw hat he wore was found on the staircase inside Chi Chi Chum. They told the Defendant to admit those facts and repeat whatever they told him in the VRI; if the Defendant did so, bail would be granted and he could go home after the interview. The Defendant believed PW1 and PW2.

c. The Defendant was hungry, and PW2 told him if he agreed to admit what they had told him, McDonalds’ big burger meal would be provided. Later, burger, chips and coke were given to the Defendant before the VRI.

d. The Defendant was suffering from migraine/ headache at the time, but he dared not to complain because the officers were very fierce and spoke loudly, which scared him. He believed if he followed the officers’ instruction, he would be released soon.

e. The Defendant was induced and intimidated and the VRI was not made voluntarily.

17.In voir dire, the Prosecution also has the burden of proof to prove the elements that it relies on beyond reasonable doubt.  The Prosecution is under a duty to prove the Defendant’s confession was made voluntarily.  The Defendant does not need to prove anything.  If the Defendant’s version is true or likely to be true, it is to his benefit that the court should reject his confession.  In the voir dire, after I ruled there was a case to answer, the Defendant elected not to give evidence and not to call any witness to exercise his right; the court would not draw any adverse influence on that, however, it means there is no evidence form the Defendant to rebut, challenge or undermine the evidence form the Prosecution.

18.I fully aware that in voir dire, the Prosecution bears the burden of proof; however, purely for the shake of convenience, I will deal with the defence case first.

19.I summarized and rearranged Ms Panesar’s argument argument in her written submission^[4] as follows:

a. PW1 and PW2 did not properly informed Defendant his rights under caution;

b. PW1 and PW2’s proficiency in spoken English is questionable and there was no evidence to proof the Defendant’s ability to read English was good enough to understand the Notice to Persons in Police Custody (pol.153, the “Notice”);

c. There was no evidence that the Defendant had said he understood the content of the Notice and he did not want to exercise his rights;

d. The Defendant seemed suffering from dangerous drug withdrawal symptoms during the VRI;

e. PW1 was not an honest witness;

f. The communication between PW2 and the Defendant was not recorded;

g. During the interview, the Defendant said he did not have anything to say, but PW2 still asked him questions.

20.The main theme of the Defendant’s case is he was intimidated and induced to make the confession. However, point (g) contradicted the Defendant’s whole case.  According to Exhibit PP4A, in paragraphs 114 and 115, when PW2 asked the Defendant “First of all, regarding this case, do you have any explanation?”, the Defendant answered “No”.  If the Defendant was really oppressed and induced by the police officers, he would not answer “No” when questioned, instead, he should have provided the answers as instructed at once.  Ms Panesar’s argument simply defied her own case. 

21.Further, if the Defendant’s version was correct that PW1 and PW2 took several hours to oppress and induce him, and eventually it was agreed between them that the Defendant had to provide answers as planned, when the Defendant answered “No”, PW2 should be surprised, or even felt angry; however, PW2 just acted normal without any special reaction. 

22.Ms Panesar also complained that PW2 kept on asking questions after the Defendant answered “No” in paragraph 115.  According to the record, in paragraph 114, PW2 asked “First of all, regarding this case, do you have any explanation?” and in paragraph 118, he asked “Can you tell us what happened at that time?”  In fact, those were two separate questions and were asking different aspects.  I think PW2 was quite entitled to do so and if the Defendant was not willing to answer, he could simply answer “No” as he had done few seconds before.

23.For point (d), according to the VRI, it is correct that the Defendant had sneezed, moved his arms and body for few times; however, there is no sign of any withdrawal symptoms.  Other than that, the Defendant behaved perfectly normal.  His reactions were spontaneous, his answers were logical and coherent, and there was no sign that his mind was affected by anything.  He was told if it was necessary or he felt cold, the air-conditioning could be adjusted (paragraph 50).  He said he believed the police, then he could have told PW2 that he was not feeling well.  If he did not believe the police, he could have told the interpreter who sat next to him.  If the interpreter found the Defendant acted strangely, she would have raised it; however, none of the above happened.

24.In point (f), Ms Panesar complained that the conversation between PW2 and the Defendant was not documented.  PW2 gave evidence that before he finished he work at the morning of 27^th September 2018, he had a brief conversation with the Defendant, and told him the procedure that would happen, including a Notice to Person in Police Custody would be given to him and a video recorded interview would be conducted.  PW2 agreed that such conversation was not documented. Such evidence was volunteered by PW2 and he was a trained and experienced officer, if he really took this chance to speak to Defendant to get him to confess by saying he was depicted on the CCTV footage, there would be no reason for PW2 to volunteer such evidence. 

25.Points (a), (b) and (c) can be dealt with in one go, as they all concern the arrest and caution of the Defendant.

26.According to PW1, when he found the Defendant was looking around suspiciously, he then intercepted the Defendant as he thought the Defendant acted wired but did not found him had any sign of withdrawal syndromes.  PW1 checked the Defendant and found he was not a warned person; however, his name was similar to a person who involved in a recent burglary case, so PW1 made enquiry and conducted a quick search on the Defendant. PW1 asked for assistance.  His colleague, PC20439 was nearby and arrived first; then PW1 arrested the Defendant.  PW1 used simple English to communicate with the Defendant and it seemed to PW1 that the Defendant understood him well^[5]. Later, a police vehicle arrived, PW1’s officer-in-charge get off from it and PW1 related the incident to him.   Then Defendant was brought back to Central Police Station.

27.After they arrived at the Central Police Station, PW1 conducted a body search on the Defendant, then handed a Notice to Person in Police Custody (Exhibit PP2) to him to read.  PW1 did not read out its full content to the Defendant, however, he explained the main points to the Defendant, including he could call his parents, eat or drink, and employ a lawyer or see a doctor.  The Defendant did not make any request and signed on Exhibit PP2 to acknowledge its content.  Then the Defendant was put into a room.  PW1 also explained the subsequent procedure to him; however, PW1 did not mention anything about the content of the CCTV footage to the Defendant.  During the whole course, no one, including PW1, had oppressed, induced, intimidate or stared at the Defendant menacingly; there was no sign that the Defendant was suffering from any withdrawal syndromes. 

28.According to PW2, he was the investigating officer of the burglary case.  Before he finished his duty in the morning of 27^th September 2018, he met the Defendant briefly inside the Central Police Station and informed him the following procedures about to come, for example, a Notice to Person in Police Custody would be issued to him, then a video recorded interview would be conducted.  He admitted such conversation was not recorded.  He did not see the Defendant until he resumed his duty in the evening on the same day; then between 1925 and 2006 hours, he conducted the VRI with the Defendant with the assistance of an interpreter. PW2 used English to communicate with the Defendant.  PW2 can communicate with others in simple English.

29.Before PW2 served the Notice to Persons in Police Custody (Exhibit PP3) to the Defendant, he asked the interpreter to read out and explain each and every item on Exhibit PP3 to the Defendant; PW2 also use English to explain the Defendant’s rights briefly to him, including he could request a lawyer, to have drink and food, to take a rest, to contact his family and friends etc.  However, PW2 admitted he could not repeat each and every word he used as it was around 5 years ago.  PW2 asked the assistance of a professional interpreter because he wanted the Defendant to understand his rights fully.  Then Exhibit PP3 was served to the Defendant, he read and signed on it to acknowledge its content, PW2 and the interpreter also signed on it.  After knowing the content of Exhibit PP3, the Defendant did not make any request.  Then PW2 asked the Defendant if he had any request, and the Defendant answered “No”.  Then the VRI started.  PW2 did not record the Defendant’s said answer as the Defendant did not make any request.

30.PW2 admitted he had watched the CCTV footage of the burglary case, but did not know who else had watched it. He also admitted that at the Declaration of Exhibit PP3, he should have crossed out the words “have had read over to me” instead of only crossing out the words “have had read”; the proper sentence after a correct deletion should be “I have read the above paragraphs and acknowledge receipt of a copy of this Notice at 1915 hours on 2018.9.27”.  PW2 confirmed the Defendant had read Exhibit PP3 by himself and PW2 had made a mistake by not deleting the whole phase “have had read over to me”.  PW2 agreed he made a wrong choice as he misunderstood the English version of the Notice to Persons in Police Custody at that time. 

31.During the VRI, PW2 did not observe the Defendant suffered from any drug withdrawal syndromes.  PW2 confirmed since he first met the Defendant until the end of the VRI, no police officer, including himself, had ever induced, oppressed, intimidated the Defendant in any way to make him to confess or co-operate with the police.

32.First, as far as the voir dire is concerned, I accept PW1 and PW2 were honest and reliable witnesses.  Their evidence in the special issue were reasonable, in line with other evidence and tally with the contemptuous document.  Their evidence remains intact after cross-examination. 

33.I observed PW1 and PW2 personally and I concluded that both of them could use simple English to communicate.  Ms Panesar submitted that there was no evidence to proof the Defendant’s ability to read English was good enough to read Exhibits PP2 and PP3.  No doubt, when the Defendant was arrested, he was already an adult and had certain social and working experience, if he did not understand the content of Exhibits PP2 and PP3, there would be no reason for him to sign on them.  I also accepted PW1 and PW2’s evidence that before the Defendant signed on Exhibit PP2, PW1 had given Exhibit PP2 to him to read, then he signed.  Before the Defendant signed on Exhibit PP3, PW2 had given it to him to read, had explained the main points to him and had asked the interpreter to read out the whole content to him.  I also accept PW2 committed a mistake that he inadvertently crossed out the words “have had read”, instead, he should have crossed out the whole phase “have read over to me”. 

34.According to PW2, as the Defendant answered he did not need to exercise any of his rights under caution, so PW2 did not recorded this answer down as the Defendant did not make any positive request.  I accept his explanation.  It is an usual experience that we seldom response to/ record down a negative answer. 

35.All-in-all, other than a bare allegation, Ms Panesar provided nothing to substantiate her case.  It is not the Defendant’s duty to prove anything; however, it renders the Defence case is nothing more than a bare allegation.  After Ms Panesar’s detailed cross-examination against PW1 and PW2, I found both of them are reliable and honest as far as the voir dire is concerned.

36.I rule that the Prosecution has proved beyond reasonable doubt that Exhibits PP2, PP3, PP4, PP4A and PP4B were obtained legally and fairly, the Defendant provided them voluntarily.  There is no residual discretion for me to exercise to exclude them.  Exhibits PP2, PP3, PP4, PP4A and PP4B were admissible and became formal Exhibits P2, P3, P4, P4A and P4B respectively.  Their weight would be considered in the general issue.

F.  The General Issue

37.After I ruled there was a case to answer, the Defendant elected to give evidence in the general issue but did not call any defence witness [See Part D].  Although I knew the Defendant had pleaded guilty to Charge 2, it would not cause any disadvantage or prejudice to him.

38.For the shake of convenience, I will deal with the Defendant’s case first; however, I fully understand that the burden of proof rests on the Prosecution.

39.In general issue, I did not believe the Defendant was an honest and reliable witness.

40.He gave evidence that he was induced to confess in the VRI, as the police officers promised him if he co-operated and followed the version provided by the police officers, they would release him soon, that he could go back home to look after his grandparents and mother.   However, in his evidence, he never mentioned he was strip searched by the police as listed in the MFI-1.  If he was really strip searched, it must be very intimidating and there would be no reason he would forget to mention the same.

41.In MFI-1, the Defendant’s version was that he was hungry, and PW2 offered him that if he agreed to admit in accordance with what the police officers told him, then the police officers would provide McDonalds’ big burger meal to him.  However, when he gave evidence, he said he had no idea why burger was provided.

42.According to the Defendant’s version, he was framed up by the police officers.  If that was the case, there would be no reason the police officers offered him a reason that he took the money from the cashier out of angry as his ex-employer owned him salary, trying to make him less greedy.

43.The Defendant gave evidence that his English reading ability was not good; he also said that he had more than 300 friends in his social media account and he used English to communicate with them.  He could read out the full content of the Notice to Persons in Police Custody in court.  Ms Panesar tried to argue that the Defendant’s English reading ability was not good back 5 years ago (i.e. in 2018 when he was arrested).  The Defendant gave evidence that he studied several years at an English only school (Sir Ellis Kadoorie Secondary School) and he repeated Form One several times.  Even accepting the Defendant’s version (which I did not), I still observed the English used in the Notice to Persons in Police Custody was not difficult or complicated, the Defendant could understand its content easily.

44.I observed the Defendant’s motion in the VRI carefully, I was not persuaded that he was suffering from any withdrawal syndromes.  He had some bodily movement, but there was no sign of any discomfort.  He mentioned he believed the police officers, so he followed their instruction; in that case, he could tell the police officers if he had any withdrawal syndromes; or he could tell the interpreter as she had never induced or oppress him.  At the beginning of the interview, he knew that if he felt cold, the air-conditioning could be turned down; likewise, if he had any withdrawal syndromes, he could have total the police officers.

45.In short, I do not believe the Defendant’s evidence in the general issue.

46.Ms Panesar commented PW1 was not an honest witness, that he mentioned the Defendant was not a Wanted Person; even the Defendant looked weird, but PW1 did not handcuffed him.  It was clear from PW1’s evidence that the Defendant was never put on the Wanted List, so it was fair to say he was not a Wanted Person.  PW1 explained when he found the Defendant, he was walking down Arbuthnot Road alone, early in the morning, looking around; so PW1 thought he was suspicious.  The Defendant was a very small built male, I accepted it was reasonable that PW1 did not handcuffed him.

47.I fully considered Ms Panesar’s comment on PW1 and PW2 and was not persuaded.  I ruled PW1 and PW2’s evidence in general issue was honest and reliable.  Their evidence was reasonable, tallied with each other and other contemptuous documents, and remained intact after cross-examination.  I accepted their evidence.

48.When the Defendant signed on Exhibits P2 and P3, he was an adult already and had certain work and social experience.  I ruled he made the VRI voluntarily and put full weight on it.  

49.According to the Defendant’s own admission, it gave full details that a burglary happened at the material date, time and location; the Defendant stole money from his ex-employer and how the burglary was carried out. 

50.Ms Panesar also submitted that as the Defendant believed his ex-employer cheated him, so the Defendant was entitled to take the money from the cashier, and he lacked the mens rea for theft.  I rejected this argument fully.  The fact that the Defendant entered the shop in the middle of the night, through its backdoor, took money from the cashier while covering his face with a napkin and wearing a straw hat; it all showed his dishonesty. 

G.  Conclusion

51.I found both PW1 and PW2 were honest and reliable witnesses in general issue and special issue.

52.I did not accept the Defendant’s evidence in general issue and found he was a dishonest witness.

53.Basically, the VRI was an inculpatory statement.  I accepted it was taken fairly and legally; the Defendant gave his confession voluntarily.  I would put full weight on the VRI.

54.I ruled the Prosecution had proved beyond reasonable doubt that the Defendant had committed the burglary as charged.

55.The Defendant is convicted per Charge 1.