HKSAR v. Kong Ming Ling

HCCC 69/2020

[2023] HKCFI 739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2020

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REASONS FOR RULING ON
ADMISSIBILITY OF EVIDENCE

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The Applications

1.These applications are made by the Defendant who is charged with two courts of ‘Trafficking in dangerous drugs’ contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“DDO”). Mr Philip Wong, counsel for the defendant, objected to the admissibility of the verbal admissions allegedly made by the defendant on 21 January 2019 and their post-record on the grounds that they were obtained from the defendant as a result of threats, oppression and fabrication by the Customs and Excise (“C & E”) officers. Mr Wong also objected to the admissibility of the seizures of drugs from the defendant (subject of the First Court) and from the subsequent house search (subject of the Second Court) on 21 January 2019 on the grounds that the searches were unlawful and amounted to oppression on the defendant.

2.A voir dire was held to determine the admissibility of the above issues. The voir dire was a lengthy hearing: testimony was received from 9 prosecution witnesses and 2 witnesses for defence on a total of 12 hearing days. After hearing submissions, on 4 January 2023 I refused the applications. I will now give my reasons.

The Prosecution Case

3.The prosecution case was that the defendant was stopped and searched by C& E officers during an anti-narcotic operation in Tokwawan area on 21 January 2019 with 493 grammes of a solid containing 423 grammes of ketamine and 83 grammes of a solid containing 62.4 grammes of cocaine found in the backpack which the defendant was carrying on his back. Upon his arrest the defendant allegedly admitted under caution that someone gave him money and told him to take the dangerous drugs to other people. He said the drugs were obtained from 12A, Tower 1, Grand Waterfront (“the Premises”) which was rented under his name.

4.Later on the same day, the C & E officers escorted the defendant to the Premises for search. They gained entry to the Premises by using the keys found on the person of the defendant. A huge quantity of dangerous drugs, namely 4,183 grammes of a solid containing 3,381 grammes of cocaine and 983 grammes of a solid containing 837 grammes of ketamine were found in the Premises. The defendant allegedly admitted under caution that the dangerous drugs and paraphernalia found in the Premises did not belong to him. He said the drugs were probably used for distribution and the tools were used for packing.

5.The arresting officer made a post-record of the alleged verbal admissions in his notebook. In a video-recorded interview (“VRI”) conducted later on the same day, the voluntariness of which was not challenged by the defence, copy of the post-record was shown to the defendant. The defendant declined to answer any question relating to the facts of the case in the VRI.

6.The defence case was that the defendant did not make any admissions as to the drugs found in the backpack and the Premises, he had not led the C & E officers to the Premises and he did not witness the house search conducted thereat. He signed the post-record as a result of threats and oppression by the C & E officers.

Admissibility of the verbal admissions and post-record

7.To summarize, Mr Wong challenged the admissibility of the alleged verbal admissions and their post-record on the ground that the evidence of the C & E officers was not credible. Their evidence was full of conflict and inconsistency, and inherently improbable. There were striking similarities between the evidence of PW1 and PW2. Mr Wong also invited this Court to exercise its discretion to exclude the admissions and post-record due to breaches of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (“Rules and Directions”) by the C & E officers.

8.Let me state at the outset. As apparent from the following paragraphs, having had regard to the whole of the evidence, I accept all the prosecution witnesses as witnesses of truth and gave full weight to their evidence in the voir dire.

9.The defendant was called to give evidence in the voir dire. I say no more about his credibility at this stage. Having considered all the evidence adduced in the voir dire, the fact that the defendant had a clear record (which favoured his credibility) and counsel’s submissions, I rejected the allegations of threat and oppression made on behalf of the defendant taking into account, inter alia, the following:

-  The defendant’s education standard and background: that he was a university graduate majoring in translation and English studies in the Faculty of Arts, that he had worked in a shipping company for 8 years involving the perusal of contracts and other documents, that he worked as a senior shipping finance manager for a bank involving perusal of contracts and financial documents.

-  The demeanour of the defendant in the VRI, his acknowledgement about the reading of the post-record by PW1 and service of the photocopy, the defendant’s response about the cause of arrest including the finding of drugs inside the backpack on his back.

-  The undisputed fact that he had been visited by a lawyer prior to the VRI; he personally ticker in the C & E Detention/Guard Form that he had no complaint.

-  Contents of the defendant’s evidence and his demeanour while testifying.

The Scene

10.Mr Wong contended that the evidence of PW1 (CO 0758, arresting officer) and PW2 (CO 18544, guarding officer) was inconsistent in respect of their observation of the defendant and the reason of stopping the defendant in the street. It was the defence case that the defendant had never behaved suspiciously and he was intercepted solely because he was the ‘target’ identified by the C & E officers in an intelligence operation rather than a random stop and search operation. There was no evidence whatsoever to support the defence allegation that this was an intelligence operation.

11.According to PW1, at the material time he was on anti-narcotic patrol in Tokwawan area with PW2. PW1 was facing the defendant when the latter walked towards him along Tokwawan Road from a distance of 10 metres. At that time the defendant was behind the back of PW2 who was facing the opposite direction of Tokwawan Road [1]. PW2 also gave a consistent account of his position, confirming that his back was facing the defendant at that time. It was until PW1 suddenly tapped on his shoulder then PW2 first saw the side view of the defendant with the backpack on his back. On the officers’ evidence which I accepted as true, there was no discrepancy as alleged by Mr Wong because the officers saw the defendant at different stages.

12.Mr Wong submitted that PW1 and PW2 gave conflicting reasons for stopping the defendant. PW1 said he found the defendant acting suspiciously but PW2 did not find him suspicious when he first saw the defendant. I disagreed. The officers’ evidence must be viewed in light of the fact that the officers observed the defendant at different stages. PW1 said as the defendant was walking towards him, he looked nervous and was avoiding eye contact. When the defendant was about one metre away, he saw that the defendant was carrying a backpack. Given his suspicious behaviour, PW1 decided to stop the defendant as he wanted to look at the backpack carried by him. He then tapped on the shoulder of PW2 to alert him of the intended interception.

13.On the other hand, PW2 said he did not see the defendant until PW1 tapped on his shoulder. At that moment he saw that the defendant looked scared. He did not share PW1’s suspicion as the defendant was approaching PW2 from his back when he was observed by PW1 to have behaved in a suspicious manner. As for his role in the interception, PW2 stated that he acted as the guarding officer to support PW1 in the interception. It was clear from PW2’s evidence that he relied on the judgment of PW1 to conduct the interception. Given that PW1 had observed the defendant for a longer period of time, I did not consider that they gave conflicting reasons for stopping the defendant.

Entry to the Grand Waterfront building

14.Mr Wong submitted that PW1 and PW2 gave conflicting evidence about their position when they entered the main entrance of the Grand Waterfront building. PW1 said he and PW2 were on the left and right hand side of the defendant respectively as they escorted him into the building. PW2 was the guarding officer who escorted the defendant to walk through the entrance. Though he agreed in cross-examination that it would be ‘reasonable’ to assume that PW1 walked in front of him (and the defendant), PW2 made it clear in his evidence that he was not clear about the exact position of PW1 as he did not pay attention to PW1’s whereabouts at the time. Both officers did not make any record of this matter. Bearing in mind that they were speaking from memory almost 4 years later, I did not accept that the discrepancy of their evidence on this peripheral matter would have any impact on their credibility and reliability about the main issues to be determined.

Gloves

15.Mr Wong submitted that PW2 and PW3 (CO 15203, Exhibit Officer) gave inconsistent evidence as to whether the defendant was wearing a pair of gloves during the house search in the Premises. PW3 said that after the arrest at the scene, he handcuffed the defendant and put a pair of gloves onto his hands. The purpose of putting on the pair of gloves was to protect him from leaving any fingerprint in the Premises at the subsequent house search. PW2 said the defendant was wearing the gloves throughout his stay in the Premises, but he was unable to recall when and how he disposed the gloves afterwards. PW2 said he did not make any record of the disposal as the pair of gloves was never intended to be preserved as case exhibit. PW2’s evidence that the use of gloves was to protect the defendant from leaving any fingerprints in the subsequent house search was supported by PW6 (Customs Senior Inspector Yip, the overall in-charge of the operation). PW6 said in cases such as manufacturing of drugs in which the suspect was believed to have handled the drugs, gloves were used before cutting the fingernails of the suspect for further examination. In that situation he would expect the gloves used to be preserved as case exhibit. However, that was not the case here. There was no examination of contact evidence and the only purpose of using the gloves was to prevent the defendant from leaving any prints in the Premises. As such the gloves used would have no forensic value in the case investigation. I considered that PW2’s failure to preserve the pair of gloves and the lack of record about its disposal had no impact on his credibility and reliability.

16.Coming back to the evidence of PW3. In cross-examination of PW3, Mr Wong did not ask him any direct question about the gloves. PW3 was asked to look the photos 1 and 2 which were taken in the Premises. There was no dispute that these 2 photographs depicted the appearance of the defendant without showing his head. PW3 agreed that the look of the defendant whilst he was in the Premises was the same as that depicted in these photos but his attention was never drawn to the defendant’s hands shown in these photographs (without wearing any gloves or handcuffs). Mr Wong invited the Court to draw the inference from PW3’s answer that the defendant was not wearing any gloves whilst in the Premises, hence inconsistent with PW2’s evidence on this matter. The defendant stayed in the Premises for almost 5 hours and had been taken to a car search in the interim. I was not prepared to draw the inference from PW3’s single answer that the defendant was not wearing any gloves throughout those 5 hours.

Colour of the defendant’s denim

17.Mr Wong suggested that PW1 and PW2 colluded in the preparation of their witness statements as both of them described the colour of the defendant’s denim jeans as “light blue” when the defendant himself described it as “light grey” in his testimony. Shortly after his arrest the defendant signed on the C & E Detention/Guard Form to acknowledge his acceptance of the C & E officer’s description of his jeans as “light blue denim jeans” [2]. Upon his admission to the Lai Chi Kok Reception Centre, on 23 January 2019 the defendant signed to acknowledge the description by DW2 (AOII 12889 of Lai Chi Kok Reception Centre) as “grey” in colour [3].

18.Mr Wong submitted that the C & E officers colluded in their description of the defendant’s jeans as “light blue” as all of them made the same error. To this regard I agreed with Mr Marray that the different colour description does not make any difference to this case. The defendant, by his signature on the documents, acknowledged both the “light blue” and the “grey” descriptions as correct. That was understandable. I had the benefit of looking at the said pair of jeans in the voir dire (retrieved from the defendant’s prisoner property) and found the colour was so pale that one could even describe it as almost whitish. Most importantly, there was no dispute that the defendant was wearing the same pair of jeans at the time of his arrest. There was no dispute that the same pair of jeans appeared in photos 1 and 2, and the defendant was wearing the same pair of jeans in the VRI. I considered that the different description had no impact on the C & E officers’ credibility. It would not have served any useful purpose for them to fabricate their evidence about this matter.

The C & E Standing Procedure

19.Mr Wong complained that the C & E officers failed to comply with the C & E Standing Procedures (“SP”) such as PW1’s failure to record “brief account of the … observation conducted” [4], one of the 12 types of activities to be recorded. This complaint has no application to PW2 who did not observe the defendant’s suspicious behaviour behind his back. The complaint was misconceived as PW6 confirmed that the said SP No. 21.1A only applied to long term surveillance operation, not to the random stop and search exercise such as the present case. In any event, I took into account PW1’s failure to make any proper record of his observation of the defendant’s suspicious behaviour on the street. I agreed that it would be better for the officer to make such a record. The chance that PW1, by random choice, decided to intercept somebody who behaved normally on the street, and by coincidence found a quantity of drugs on his person, and that person happened to have the keys to a premises where a huge quantity of drugs of similar nature was stored (the defendant did not deny that the keys to the Premises were found on his person) was so remote that I regarded as inherently improbable. Besides, PW1 gave evidence in a firm and honest manner. He remained unshaken in cross-examination. Having considered his evidence carefully, despite the lack of record I accepted that PW1 decided to intercept the defendant because of the latter’s suspicious behaviour.

Witness statements

20.Mr Wong submitted that PW1 and PW2 had colluded together as their witness statements bore many “strikingly similarities”. I have had the opportunity of reading those statements in detail [5]. Suffice to say when 2 or more officers were engaged in the same operation or action, it made perfect sense that their general description of the operation or action such as date/time/venue were similar. Such “striking similarities” do not support the defence assertion of collusion.

Notice of person in custody

21.The prosecution alleged that PW2 duly served the “Notice to person in custody” [6] (“the Notice”)to the defendant at 2130 hours on 21 January 2019 prior to the making of the post-record in the Premises. Copy of the Notice was provided to the defendant at 0420 hours on 22 January 2019 upon return to the C & E office where a photocopier was available for reproduction of the Notice. The defence alleged that the Notice was never served before the taking of the post-record. Many questions were asked of various C & E officers as to time appeared on the Notice (2130 hours and 0420 hours) and the purported action being taken at those timings. The problem arose from the design of the printed declaration which seemed to suggest that the recipient signed to acknowledge receipt of the copy (rather than he understood the contents at the time of service). Having considered all the evidence including the defendant’s reply in the VRI acknowledging receipt of the Notice at 2130 hours on 21 January 2019, I accepted the prosecution evidence that the Notice had been duly served to the defendant before the post-record, and a copy of the same was provided to him at 0420 hours.

Breach of the Rules and Directions

22.Mr Wong further submitted that I should exercise my discretion to exclude the admissions and the post-record on the ground that the C & E officers had breached the Rules and Directions including

(i)  failed to tell the defendant the specific offence for which he was arrested;

(ii)  failed to take the post-record in a private and comfortable environment;

(iii)  failed to provide copy of the post-record to the defendant; and

(iv)  delay in warning the defendant that he might be charged.

23.PW1 stated that upon finding of the white crystalline substance contained in transparent plastic bags in the defendant’s backpack, he immediately told the defendant, “You are suspected of contravening the Dangerous Drugs Ordinance. I’m now arresting and cautioning you” followed by words of the caution. Upon finding of the drugs in the Premises, he told the defendant that “You are suspected to have contravened the Dangerous Drugs Ordinance” followed by words of the caution. Mr Wong contended that the words “contravening the DDO” were insufficient to inform the defendant pf the offence for which he was arrested. I disagreed. On the evidence of the C & E officers, the defendant was present when his backpack was searched with the transparent bags of white crystalline substances found. Though PW1 did not spell out the actual offence of “trafficking in dangerous drugs”, the defendant had been told all that he was entitled to know about the nature of the offence: see R v Kulynycz [1971] 1 QB.

24.According to PW1, the post-record was taken in the living room of the Premises after the defendant made the alleged verbal admissions in relation to the drugs and paraphernalia found in the Premises. At that time the defendant sat at a table with chairs in the living room. Mr Wong complained that the taking of the post-record in the living room was not a private and comfortable environment, and he suggested that it should be taken in one of the bedrooms instead. I disagreed. There was nothing wrong for PW1 to take the post-record soon after the alleged verbal admissions when the matter was still fresh in his (and the defendant’s) mind. I also failed to see the reason why one of the two bedrooms (presumably Mr Wong meant the one without drugs seizure as a quantity of drugs were found in the other) would be a better place for the taking of the post-record instead.

25.The defendant denied that he was provided with copy of the post-record, claiming that the first time he saw a copy of the document was in the VRI. PW1 stated that he provided copy of the post-record together with copy of the Notice to the defendant at 0420 hours on 22 January 2019. He admitted that no receipt was signed by the defendant to acknowledge that he was given copy of the document. To this regard PW5 (SCO 07178, OC of the scene operation) said in his evidence that during his attachment to other C & E units such as the Tax-related Crime Investigation Bureau and the Border Division, he had seen a form used for acknowledgement of receipt of copy documents such as post-records, records of interview and articles seized or detained [7]. PW5 had never seen or used such a form during his 6 years’ attachment to the Drug Investigation Bureau (where PW1 and PW2 worked). On the other hand, PW6 said he had seen this form in the cabinet of the Drug Investigation Bureau. He agreed that it would be better for his officers to use the form for the defendant to acknowledge receipt of the post-record. It is to be noted that the form mentioned was not an official form of use of C & E officers generally. The official form would have, for instance, the words “C&E 69” printed on it. While I agreed that it would be a better practice for PW1 to use this form or any other document for the defendant to acknowledge receipt of the post-record, the fact was he was not aware of the existence of this unofficial form which appeared to be used by some other C & E officers in other units.

26.Mr Wong relied on DW2’s evidence that the defendant did not have a copy of the post-record with him when he was handed over to CSD custody after his first court appearance. DW2 informed this Court that aal the case documents would be kept by the inmates themselves, and CSD would not make any record of the case documents held by inmates. As such DW2’s evidence did not assist in supporting the defendant’s assertion.

27.In considering whether copy of the post-record was duly served to the defendant, I took into account his demeanour in the VRI when copy of the post-record was shown to him - before he acknowledged that it was a record of his admissions, the defendant carefully read the copy page by page for about 50 seconds. The defendant agreed that the VRI was voluntarily given and he exercised his right of silence by refusing to answer any further questions about facts of the case in the VRI. It may worth noting that the defendant had the opportunity of seeing a lawyer shortly before he attended the VRI.

28.Having considered the whole of the evidence, I accepted that PW1 had served copy of the post-record to the defendant at the time copy of the Notice was given to him at 0420 hours on 22 January 2019.

29.I also did not accept Mr Wong’s contention that the C & E officers delayed in warning the defendant that he might be charged. Rule III(b) of the Rules and Directions stipulated that “It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted.” There was nothing wrong for the C & E officers to conduct further enquiries with the defendant after the seizures of the drugs. They were entitled to make further inquiries of the defendant as to the scope of the offence and the circumstances in which it was committed: see HKSAR v Chan Wai Keung [2003] 1 HJLRD 901.

30.For the above reasons I was satisfied that all the verbal admissions and the post-record had been voluntarily made by the defendant. There were no grounds upon which it was appropriate to exercise my discretion to exclude any of the admissions.

Admissibility of the Seizures of Drugs

31.Mr Wong invited this Court to exercise its discretion to exclude the drug seizures on the grounds that the search and seizures of drugs from the defendant were unlawful and as a result of the unfairness suffered by the defendant.

32.Given the overlapping nature of Mr Wong’s submissions, some of the matters I mentioned in the preceding paragraphs also applied to my consideration of this issue, hence no repetition.

33.In addition to the credibility of the C & E officers, Mr Wong contended in particular:

-  the arrest and search of the defendant was unlawful;

-  that the taking of the defendant’s photograph (photos 1 and 2) amounted to reconstruction evidence;

-  that the C & E officers failed in their duty to investigate which was unfair. The investigation of the Octopus card was done at a very late stage and the C & E did not obtain the CCTV which could be useful to the defendant from the building management;

-  breach of the Rules and Directions.

34.I am grateful to Mr Marray for setting out the applicable legal principles in his written submissions and I will adopt them here:

“III. Does the court have a discretion not to admit evidence of seizures of dangerous drugs?

33. This is not a case in which a discretion to exclude evidence should be exercise. The finding of the dangerous drugs is a separate matter from any admissions. It is a matter for the jury to decide whether the dangerous drugs were found as the Customs Officers said and then to decide whether the defendant knew they were dangerous drugs. It would not be rational or proportionate to exclude evidence of the seizures of a huge quantity of dangerous drugs found in the Premises of the arrested person simply on the ground that the arresting officer did not have reasonable suspicious to search his backpack in which a large quantity of dangerous drugs were found. Even if the arresting officer did not have reasonable suspicious, his conduct could not be described as so unfair, so tricky, or so oppressive, as to justify excluding evidence of the finding of the dangerous drugs at the backpack and the subsequent finding of the dangerous drugs at the Premises.

34. The starting point is the judgment of Lord Goddard in Kuruma v. The Queen [1955] AC 197 at the second paragraph at p.203.

“It is admissible and the court is not concerned with how the evidence was obtained.” And at p. 204 at paragraph 1, “No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.”

35. In R v Sang [1980] AC 402, Lord Diplock pointed it out at page 435G – H.

“Nevertheless it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been ‘obtained’ unfairly or by trickery or oppressively, although except in Reg v Payne [1963] 1 W.L.R. 637, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion.”

36. Lord Diplock made rulings at page 473D – F in R v Sang.

“(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.”

37. Lord Scarman at page 456F – G in R v Sang said,

“The question remains whether evidence obtained from an accused by deception, or by trick, may be excluded at the discretion of the trial judge. Lord Goddard C.J. thought it could be: Kuruma v The Queen [1955] AC 197, 204, Lord Parker C.J. and Lord Widgery C.J. thought so too: see Callis v Gunn [1964] 1 QB 495, 502 and Jeffrey v Black [1978] QB 490. The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for the purpose of this appeal, to express a conclusion upon them. But always provided that these dicta are treated as relating exclusively to the obtaining of evidence from the accused, I would not necessary dissent from them.”

38. Lord Fraser of Tulleybelton at page 450E in R v Sang commented,

“(Judges) will also have valuable guidance of a more general nature in the opinion of Lord Widgery C.J. in Jeffrey v Black [1978] QB 490. I do not think it would be practicable to attempt to lay down any more precise rules because the purpose of the discretion is that it should be sufficiently wide and flexible to be capable of being exercised in a variety of circumstances that may occur from time to time but which cannot be foreseen.”

39. Jeffrey v Black [1879] QB 490 was heavily considered at page 419B – H of R v Sang.

“We turn to the most recent of these cases, Jeffrey v Black [1879] QB 490, a decision of the Divisional Court. In this case the police had acted illegally in searching the respondent’s room without his consent and there found drugs. He was charged with drug offences on the basis of evidence thus illegally obtained. The justices had excluded the evidence. The Divisional Court allowed an appeal by the prosecutor on the ground that the evidence, however obtained, was relevant and therefore admissible, and ordered the case to be remitted for trial before another bench of justices. The court applied what had been said in Kuruma v The Queen [1955] AC 197. It accepted the existence of a discretion but held that the justices had wrongly exercised it. Lord Widgery C.J., after referring to Kuruma’s case, said, at pp. 497 – 498:

“But that is not in fact the end of the matter because the justices sitting in this case, like any other tribunal dealing with criminal matters in England and sitting under English law, have a general discretion to decline to how any evidence to be called by the prosecution if they think that it would be unfair or oppressive to allow that to be done. In getting an assessment of what this discretion means, justices ought, I think, to stress to themselves that the discretion is not a discretion which arises only in drug cases. It is not a discretion which arises only in cases where police can enter premise. It is a discretion which every judge has all the time in respect of all the evidence which is tendered by the prosecution. It would probably give justices some idea of the extent to which this discretion is used if one asks them whether they are appreciative of the fact that they have the discretion anyway, and it may well be that a number of experienced justices would be quite ignorant of the possession of this discretion. That gives them, I hope, some idea of how relatively rarely it is exercised in our courts. But if the case is exceptional, if the case is such that not only have the police officers entered without authority, but they have been guilty of trickery or they had mislead someone, or they have been oppressive or they have been unfair, or in other respects they have behaved in manner which is morally reprehensible, then it is open to justices to apply their discretion and decline to allow the particular evidence to be let in as part of the trial. I cannot stress the point too strongly that this is very exceptional situation, and the simple, unvarnished fact that evidence was obtained by police officers who have gone in without bothering to get a search warrant is not enough to justify the justices in exercising their discretion to keep the evidence out.”

40. In HKSAR v Muhammad Riaz Khan (FACC 13/2010), the Court of Final Appeal held at paragraph 20:

“Evidence obtained in breach of the defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conductive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned (iii) appears unlikely to encourage any future breaches of that or other rights.”

In applying the test to justify a discretion to receive evidence obtained in breach of a constitutional right,

“the discretion concerned is rational and proportionate. The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.” (Paragraph 20 of Muhammad case)

41. It would neither be rational nor proportionate to exclude the evidence of a large quantity of dangerous drugs found on a person in the street because the Customs Officer did not have reasonable suspicion to stop and search him. It would neither be rational nor proportionate to exclude the evidence of a seizure of dangerous drugs at the arrested person’s home because when he was first stopped, the Customs Officer did not have reasonable suspicion to stop and search him.

42. The finding of the dangerous drugs on the defendant and in the Premises of the defendant are independent from the reasons for stopping the defendant. The reception of such evidence is conductive to a fair trial.

43. At paragraph 116 (11) at page 448F in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, it was held,

“Where the gravity of a breach or derogation is small but the crime involved is a serious one, the public interest will lean more favourably towards the latter factor with the consequence that any evidence obtained as a result of the breach or derogation will be admitted.”

44. Reference to R v Shaheed [2001] 2 NZLR 377 is made at page 449C in Chan Kau Tai.

“If, however, the crime was very serious, particularly if public safety is a concern, that factor coupled with the importance of the evidence in question may outweigh even a substantial breach. It may require the view to be taken that exclusion of the evidence, leading to failure of the Crown case, is a remedy out of proportion to the circumstances of the breach.”

45. Trafficking in dangerous drugs is a very serious offence and it in the public interest for persons found in possession of large amounts of dangerous drugs to be brought to trial.

46. At paragraph 116 (12) at page 450A – D in Chan Kau Tai, it further held,

“The public interest of course lies in the effective prosecution and punishment of crime, but account must also be taken by the court of the detection of crime by the investigating authorities. In HKSAR v Lee Ming Tee & Securities and Futures Commission (Intervener) (2003) 6 HKCFAR 336, Sir Anthony Mason referred to the ‘public interest in the detection and punishment of crime’ (emphasis added): see page 396A‑B (paragraph 187). Accordingly, in our view, when conducting the balancing exercise, a court must also have regard to the fact that some crimes are by their very nature surreptitious and not easily detected. Often, it may be that the investigating authorities are driven to resort to covert investigative techniques in order properly to detect criminal activity. All this does not naturally provide any excuse from the breach of or derogation from constitutional guaranteed rights, but it is a factor for the court to weigh in the balancing process when considering the admissibility of evidence.” ”

35.Section 17A of the Customs and Excise Service Ordinance, Cap 342 (C&ESO) provides that a member of the C & E may, without warrant, stop and search and arrest any person which he may reasonably suspect of having committed an offence specified in Schedule 2. The DDO is an Ordinance specified in Schedule 2 of C&ESO.

36.Mr Wong submitted that the stop and search of the defendant by PW1 on the street was unlawful. PW1 agreed in cross-examination that before the stop and search, he would have no idea what kind of offence the defendant might have committed. PW1 agreed that depending on the substance found in the backpack, the eventual offence might even be an offence under the Dutiable Commodities Ordinance. In the present case, he found white crystalline substance in transparent plastic bag, therefore he arrested and cautioned the defendant for suspected to have contravened the DDO. The finding of the dangerous drugs on the defendant provided independent reasons for the interception and search of the defendant.

37.As Mr Marray rightly pointed out in his submissions, the finding of the drugs in the backpack was independent from the admissions made by the defendant. The answers given by PW1 should be viewed in context. At the material time he was conducting anti-narcotic patrol together with PW2. Both of them were members of the C & E Drug Investigation Bureau. On his evidence, after seeing the suspicious behavior of the defendant, PW1 wanted to stop the defendant when he saw the defendant was carrying a backpack on his back because it appeared to contain something of weight. In the circumstances one could safely infer that the officer had drug-related offence in mind though he could not be sure without examining the backpack. In the circumstances, I was satisfied that the defendant was duly arrested for contravening the DDO.

38.Statutory power for the C & E officers to search the Premises can be found in section 52(1) of DDO and section 17A of C&ESO. At the material time the defendant was the sole tenant of the Premises. He was intercepted in the close vicinity of the building. The Octopus card that could gain entry to the building and keys to the door of the Premises were found on his person. These solid facts, coupled with the defendant’s verbal admission that the drugs in his backpack were obtained from the Premises, provided full legal justification for the search of the premises.

39.As for the taking of the photos 1 and 2, I considered that the photos were not an admission that the defendant was actually wearing the backpack at the time of arrest. They just depicted the prosecution’s account of how the defendant’s clothing looked like at the time of interception. The defendant’s appearance or identity was not revealed. As such the photo-taking do not amount to reconstruction. The taking of such photographs was just part of the investigation process. As to Mr Wong’s submission about the application of section 59 of the Police Force Ordinance, I agreed with Mr Marray that this section was irrelevant to the present consideration as it related to “identifying particulars”.

40.As detailed above I did not accept there was any breach of the Rules and Directions by the C & E officers. I also rejected the suggestion that the C & E officers had failed in their duty to investigate. As for the delay in obtaining the CCTV evidence and checking the building’s Octopus card entry record, the fact remained that the defendant did not name any other person in his admissions. The officers were acting under constraints of time and manpower after the huge seizure. I accepted that they had acted in good faith with the best of their ability at the time. Indeed, as disclosed by PW7 (the OC Case), follow-up actions were taken by C & E with another person arrested. It was due to the lack of sufficient evidence that no proceeding was instituted against that other person.

41.For the above reasons I rejected the defence submission that the seizures of drugs were obtained as a result of breaches of the defendant’s constitutional rights. I therefore rejected Mr Wong’s application to exclude the seizures of drugs.

42.Prior to the completion of the whole trial, this document is only provided to parties of these proceedings.

Mr Marray, John, Counsel-on-fiat of the Department of Justice, for the Prosecution

Mr Philip Wong Chi-wai, Counsel instructed by Messrs Krishnan & Tsang, assigned by DLA, for the Defendant