HKSAR v. Li Cheuk Wah

CACC 135/2021

[2024] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 135 OF 2021

(ON APPEAL FROM HCCC NO 53 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.This appeal is concerned with the admissibility of an accused’s statements and conduct during a controlled delivery operation, for which the authorities would obtain the accused’s cooperation to effect delivery of a dangerous drug found in his or her possession to the person who is to collect them. It raises for consideration the principles that should apply if the accused’s statements and conduct are sought to be adduced into evidence, and whether any particular direction should be given to the jury in respect of such evidence if admitted.

2.On 16 June 2021, the appellant was convicted after trial before M Poon J (as M Poon JA then was) (the Judge) and a jury of one count of trafficking in a dangerous drug, consisting of 2,877 grammes of a powder containing 2,333 grammes of ketamine.  The appellant was sentenced to 19 years and 10 months’ imprisonment.

3.On 3 October 2022, the Single Judge[1] granted the appellant leave to appeal his conviction on the sole ground as to whether HKSAR v Choi Chi Tak [2] had laid down a statement of principle in relation to the admissibility and use of evidence in respect of a controlled delivery operation, and if it did, the precise terms of such a principle and whether it applied to the particular facts and circumstances of the present case.

The prosecution case

4.On 18 March 2019, the appellant opened a virtual office account at the Jumpstart Business Centre (Jumpstart) by using his own email address and mobile telephone number.

5.On 6 June 2019, two parcels that were addressed to the appellant were delivered to him at Jumpstart.  The parcels had originated from Malaysia.  The staff at Jumpstart contacted the Customs and Excise Department and requested a customs check on the two parcels.  Customs officers attended Jumpstart and after an examination of the parcels, found that each parcel contained, under a layer of miscellaneous food products, six paper boxes labelled as coffee products, which had been opened and resealed.  Inside each box were six tin foil packets containing ketamine.  The total street value of the ketamine was $1,754,970.

6.At the direction of the Customs officers, the staff at Jumpstart emailed the appellant that the two parcels addressed to him had arrived and were ready for collection.  Later in the evening of that day, the appellant arrived at Jumpstart and asked to collect the two parcels.  A Customs officer, posing as a staff member at Jumpstart, handed over the two parcels to the appellant after checking his identity card and Jumpstart Business Centre customer card.  Upon the appellant acknowledging receipt and leaving with the parcels, the Customs officer arrested and cautioned him.  The appellant said his friend “Fei See” introduced a man to him about three months previously, who told him to open an account with Jumpstart, which he did.  He was then told to collect the parcels on the day in question.  He was to receive a reward of $20,000 for opening the Jumpstart account and collecting the parcels, which he had not received.  He said he thought the parcels contained prohibited weapons.[3] 

7.When the Customs officers searched the appellant, they found in his possession a Jumpstart Business Centre customer card, and a mobile telephone containing a Micro SD card and a SIM card with the number 63799299. An examination of the appellant’s mobile telephone revealed WhatsApp text and voice messages between his mobile telephone using the number 63799299 and telephone numbers 65419729 and 52655627.  There were also calls between the appellant’s mobile telephone and the mobile telephone numbers 52655627 and 96171620 during the material times.

The controlled delivery operation

8.The Customs officers completed a Preliminary Enquiry Form (PE Form) with the appellant, who agreed to participate in a controlled delivery operation.[4] It was noted in the PE Form, that the appellant had been arrested and reminded that he was still under caution, the terms of which were repeated to him.  He confirmed he understood and was willing to answer questions in order to assist Customs officers in carrying out a controlled delivery operation.  He wrote and signed a declaration that he was willing to make a statement, he knew he was not obliged to say anything unless he was willing to do so, and whatever he might say could be given in evidence. 

9.The appellant was asked a series of questions regarding the collection and delivery of the parcels.  He explained that he was to take the parcels to the Mongkok Road playground and give it to a man whom he did not know, except he had his telephone number, 96171620.  He said another man introduced this man to him, and this other man’s telephone number was 52655627.  This latter man was introduced to him by his friend “Fei See”, whose telephone number was 65419729.  He confirmed that he was to receive $20,000 after the collection.  He was then asked,[5]

“Are you willing to cooperate with C&ED and carry out (a) controlled delivery operation, i.e. to hand over the postal packet to the person(s) who may come to pick up as arranged and instructed by Customs officer(/s)? But I have to point out to you that even if you are willing to cooperate with Customs officer(/s) and carry out the controlled delivery operation, it does not imply that you will be surely granted immunity from prosecution or any reduction in sentence in the trial is concerned in the future, for which the decision of the Department of Justice or the court shall be final. Do you understand?

A: I, LI Cheuk-wah, [(holder of identity) document no.: Y173052[3]], am *willing / ^vnot willing^v to cooperate with Customs officer(/s) and carry out a controlled delivery operation. No Customs officers have offered any benefits, (proposed any) conditions or (made any) commitments to me as a reward for carrying out the controlled delivery operation.

Q: Well, do you agree that Customs officer(/s) can check and use your mobile phone so as to carry out this controlled delivery operation?  I remind you that you can stop assisting Customs officer (/s) and stop Customs officer (/s) from checking your mobile phone at any time.  Do you understand and agree with (that)?”

10.The appellant agreed with the terms and conditions of the controlled delivery operation.  He confirmed he had read the contents of the form, which he understood and agreed with.  He also confirmed that he had nothing he wished to correct or add.  He stated that the contents of his statement were true, and made of his own free will.

11.The appellant was driven to the Mongkok Playground where delivery of the parcels was to take place.  In the presence of the Customs officers, the appellant had a number of telephone conversations with the contact person.  The appellant sat on a bench in the playground and PW2 sat next to him.  PW2 handed over the appellant’s telephone to him and told him that he was to use the speaker function if there was an incoming call.  He told the appellant that if someone asked him why he had not answered the calls for such a long time earlier on, he could use the excuse of having an argument or quarrel with his girlfriend. 

12.The appellant communicated with the contact person via WhatsApp on his mobile telephone on five occasions (four incoming and one outgoing).[6]

13.At 19:36 hours, the appellant received a telephone call from telephone number 52655627, the contact person asked him where he was and he said in Mongkok.  The contact person asked the appellant what he was doing and he said, “Nothing.  Just quarrelled with my girlfriend.”  The contact person said, “Call me after it’s done.”, and the appellant said, “Okay, okay.” The contact person said to the appellant, “Let’s have a meal tonight.” 

14.At 19:42 hours, the contact person telephoned the appellant, who asked him, “Is it done?”.  The appellant said, “The person has not yet arrived.  I have arrived.”  The contact person asked the appellant, “Are you still up there?”, and he replied, “I’m now waiting for him or her in the park.”  The contact person said, “Be careful.  If anything happens, just ignore it.  Call me after it’s done.”, and the appellant said, “Okay.”  There was also a WhatsApp video call at around 19:42 hours.  The contact person asked the appellant, “What are you doing?”, and the appellant said, “Waiting for a person.”  The contact person then asked the appellant, “Is there any ghost?”, and the appellant said, “No”. 

15.At around 19:46 hours, the contact person made another video call to the appellant.  The contact person asked him, “Just now what were you doing for such a long time?”, and he replied, “Quarrelled with my girlfriend.”  The contact person then asked him, “Show me what the environment is.”  He switched on the camera of his mobile telephone and showed the area in front of him to the contact person, who said, “Okay.”. 

16.At around 20:00 hours, the appellant called the other party.  During this fifth and final call the following exchange took place:[7]

“Appellant : ‘Brother’.

Contact : ‘Say it.’

Appellant : ‘I have taken the goods, but the person has not yet come. How should I deal with the goods?’

Contact : ‘If there’s anything about the goods, I will find a lawyer for you. Okay?’

Appellant : ‘There’s no reason for me to carry the goods and walk around.’

Contact: :  ‘If anything happens, I will find a lawyer for you.  Goodbye.’”

17.It was clear from the contact person’s final remarks that he became suspicious, and consequently, the operation was called off.  The appellant also made five telephone calls to the other number, 96171620, regarding the handing over of the parcels, but none were answered.[8] 

18.In a subsequent video recorded interview, the appellant confirmed what he had said under caution and in the PE Form. 

The defence case

19.Before the trial, the Judge held a voir dire to address the appellant’s challenge of the admissibility of his out-of-court statements, consisting of his “alleged utterances” after arrest and caution (the “utterances”); the Preliminary Enquiry for Immediate Follow Up Investigation (the “preliminary enquiry”); the post recorded notebook entry (the “notebook entry”); and the video recorded interview (the “VRI”).

20.The appellant alleged that (i) the out-of-court statements had not been made voluntarily but in oppressive circumstances, where violence, threats and intimidation had been used or made; and (ii) it would be unfair to adduce the preliminary enquiry into evidence, and might have a prejudicial effect on him at trial.  It was also submitted that the Judge should exercise her residual direction to exclude the out-of-court statements, relying on Choi Chi Tak, where the Court of Appeal held it was unfair to rely on the applicant’s response when he was acting on instructions during the controlled delivery.  It was argued that evidence in respect of a controlled delivery operation was inadmissible.  The Judge rejected this argument on the basis that it depended on the comments that were made.  She ruled that the out-of-court statements were voluntary and did not exercise her discretion to exclude them. [9]  

21.At trial, the appellant did not give evidence or call any witnesses on his behalf, but he contested the account the Customs officers gave.  He alleged that he did not make the statements under caution as claimed, nor did he give the answers and telephone numbers in the PE Form.[10]  He did say, however, that he believed the parcels contained prohibited weapons, but the Customs officers forced this answer out of him.  He also alleged that he told the Customs officers that he was to receive $20,000 for opening the account and collecting parcels three to four times a month, and that it was just like doing a job.  He explained that he was woken up for the interview and was tired and sleepy, and that the Customs officers instructed him how to answer the questions.[11]  The Customs officers who testified denied these allegations.

22.The call records and the messages in relation to the appellant’s mobile telephone were adduced into evidence by way of admitted facts.[12] The appellant did not challenge the accuracy of what was heard by the Customs officer of the telephone conversations between him and the contact person during the controlled delivery operation. 

The closing addresses

23.Prosecuting counsel, in his closing address, took the jury through the appellant’s WhatsApp messages before and after the appellant collected the parcels.  He focused the jury’s attention on the communications during the controlled delivery operation that showed the appellant knew the parcels contained drugs.  He said:[13]

“That then comes us to the events that then transpired in the controlled delivery operation later after he’d been arrested. And we’ve heard the evidence that it would appear that unfortunately the other party realised that something had gone wrong. You’ve heard from Officer 18413 and the telephone calls that he could hear coming in or with the defendant was that -- asking about ghosts, asking to use the video camera to show the environment. Now, obviously, members of the jury, there’s a specific reason for that, asking about ghosts and wanting to see the environment. They want to see whether it’s safe for someone to come and collect the parcel.

And, finally, in a slightly chilling way in a way, for the defendant that is, saying, ‘We’ll find a lawyer for you, goodbye.’ ‘Goodbye’ sounds very final. And with that the customs officers knew that no one would be coming.

…

So what we have with the WhatsApp messages is only a portion of the whole picture of this enterprise, but what I would suggest to you, members of the jury, is that from these WhatsApp messages we show a course of conduct by the defendant that for some time he was prepared to pick up a parcel, and that parcel was a parcel that contained drugs, and this was something that he knew.  I would say all the evidence that we have before us show that the defendant knew that he was to pick up a parcel that contained dangerous drugs.”

24.Mr Bernard Yuen, who represents the appellant on appeal, also represented him at trial.  In his closing address, he noted that the prosecution relied on the contents of the appellant’s telephone communications to prove his guilty knowledge.[14] He made the following points:[15]

“… Firstly, the defendant in carrying out the controlled delivery operation has to cooperate with customs officers and act according to their arrangement and instructions. Therefore, what the defendant said or did or failed to say or act were only the result of arrangement and instructions of customs officers.

…

Secondly, as a matter of fact, in fact, nothing said by the defendant in the telephone conversation in the course of the controlled delivery operation indicated any guilty knowledge at all.

…

Thirdly, as I said earlier, it is possible that the man on the other side using the phone number, 52655627, phone number 5, he may have a different knowledge over the contents of the two parcels.  …”

25.Mr Yuen stressed that the telephone communications during the controlled delivery operation did not assist the prosecution in establishing the appellant’s guilty knowledge.  He questioned the credibility and reliability of the Customs officers (PW1 and PW2), who dealt with the appellant.[16] He generally addressed the WhatsApp messages, submitting to the jury that they were vague and unclear and did not support the prosecution case.

The Judge’s directions

26.The key issue at trial was whether the appellant knew there were drugs in the parcels.  In addressing the issue of knowledge, the Judge noted that there was no direct evidence against the appellant and that the prosecution were relying on circumstantial evidence, including, amongst other things, what the appellant said as recorded in the PE Form.[17]  She also noted the defence position regarding this evidence in the following remarks to the jury:[18]

“The defence said that the mere fact the defendant was willing to take part in a controlled delivery operation in the Mongkok park, on its own does not infer guilty knowledge. And given that it was controlled, in the sense of under the instructions of Customs officers, how he responded with his answers, or his failure to respond, should not be used to draw any adverse inference against him.”

27.The Judge summarised the evidence of the Customs officers in their dealings with the appellant and what he said under caution and in the PE Form.[19] She noted that, “the prosecution says that you can rely on what was said by the defendant under caution and in the preliminary enquiries form as a piece of evidence from which you can draw inference as to whether the defendant had knowledge of the dangerous drug in the parcel.”[20]  She then reminded the jury that the defence challenged the voluntariness and reliability of what was allegedly said by the appellant under caution and in the PE Form.  She explained to the jury that whether they could rely on his statements under caution and contained in the PE Form, they had to decide whether he, in fact, said those statements.  She went on to say:[21]  

“If you are not sure he said those, you must ignore them. If you are sure that he said those, you need to decide whether they were or may have been made or given as a result of the oppressive behaviour of the Customs officers as the defence has alleged, which may make it unsafe to rely on what was said. If you conclude that the statements were, or may have been obtained by, or as a result of, oppressive and threatening behaviour from the Customs officer and/or with inducement on promises, then you must disregard the statements altogether. Finally, if you are sure that the defendant made these statements and they were not obtained as a result of oppression or something said or done which may render them unreliable, you must then consider whether when he said these things they were true. If you are not sure what he said was true, you must ignore it altogether. On the other hand, if you are sure that they were true, you may treat it as evidence which support the prosecution case.”

28.After directing the jury on the appellant’s mixed statement under caution, the Judge returned to the appellant’s evidence in the controlled delivery operation.  She said:[22]

“Now, members of the jury, you were told that the defendant agreed to take part in a controlled delivery operation. He was then driven to the Mongkok park. PW1 said he sat on a bench on his own next to where PW2 and the defendant was.

PW2 handed back the defendant’s mobile phone to him and told him to use the speaker when there was an incoming call. PW2 also instructed the defendant not to alert the caller if he was asked why it took him so long to pick up the call, and just to say that he just had a quarrel with his girlfriend. PW2 then related the content of five calls to you. I am not going to repeat those in detail, but they concern about the caller essentially asking where the defendant was, what was he doing, whether there were any ‘ghost’ and asking him to show the environment to him by turning on the camera. The last call was made by the defendant and the other party mentioned about finding a lawyer for the defendant.

It was not disputed that there was such conversations during the controlled delivery operation. The prosecution does not seek to rely on the truth of what the caller or the other party said during those conversations. Rather, they relied on what this defendant said in response to show that he had knowledge, especially when the defendant said in the last call, which was made by him to the other person that there was no reason for him to carry the goods and walk around with those goods.

Members of the jury, when deciding the weight to attach to what the defendant said to the other party during the controlled delivery, do bear in mind that he was in the company of, and indeed, under the instructions of Customs officers and he might not be as free to respond in a way which otherwise would have been had he not been so monitored.” (Emphasis added)

29.The Judge clearly had the case of Choi Chi Tak in mind, as shown by her remarks to the jury.  Perhaps a significant matter is the Judge’s comment to the jury that the prosecution relied on the appellant’s statement in the last call to show that he had knowledge of the drugs in the parcels.  Whilst the prosecutor relied generally on the appellant’s communications with the contact person in the controlled delivery operation, it was the Judge who singled out the appellant’s comments in the last call as evidence showing he knew the parcels contained drugs.  Notwithstanding the qualified instructions to the jury regarding the weight to be given to the controlled delivery evidence, it was relied upon to implicate the appellant that he knew the parcels contained drugs.  The question is whether it should have been adduced into evidence and, if not, whether it had compromised the appellant’s fair trial.

Submissions

30.Mr Yuen contends that it was unfair to admit into evidence the appellant’s involvement in the controlled delivery operation to establish his guilty knowledge without adequate warning by the Judge, which resulted in an unsafe and unsatisfactory conviction.  However, he recognises that he made no submission to the Judge, nor raised any objection about her summing-up on this issue when it was available for him to do so.

31.A key component of Mr Yuen’s submission is reliance on the Court of Appeal’s decision in Choi Chi Tak.  He accepts that the Court did not hold as a matter of principle that evidence of a controlled delivery was inadmissible per se.  However, he fashions his argument before us on the Court’s observations in that case that during a controlled delivery, the appellant is required to follow the instructions of Customs officers, and it would be unfair to rely on such evidence under those circumstances.

32.On this issue, Mr Yuen advocates that the controlled delivery operation evidence should not have been adduced into evidence because (1) it was unfair and illogical to infer the appellant’s guilty knowledge from his statements and responses during the controlled delivery operation; (2) the appellant’s statements, acts and responses during the controlled delivery operation were controlled or instructed by the Customs officers; (3) it was unfair for Customs officers to induce the appellant to participate in a controlled delivery operation to assist them in their investigation and subsequently use the appellant’s statements and responses to infer guilty knowledge, which amounted to entrapment; and (4) it was unfair, unsafe and prejudicial to rely on the appellant’s responses when what was said by the other person was not accepted or established as true.

33.In addressing Mr Yuen’s argument, it is first necessary to consider Choi Chi Tak.  In that case, the appellant received a parcel containing drugs that had been sent from Thailand to Hong Kong.  After he took possession of the parcel and was arrested, he agreed to participate in a controlled delivery operation.  A person named “Chung Loi” called him several times to inquire about the situation and to instruct him regarding handing over the parcel to a contact person.  “Chung Loi” warned the appellant that “it is dangerous even just holding the things on the street” and the contact person said that it was inconvenient for him to collect the goods from the appellant at the intended original location as police vehicles were parked nearby.  In arguing that the appellant had knowledge of the drugs, the prosecution referred to his previous work relationship with “Chung Loi” and suggested that he had previously trafficked in drugs for him, and also relied on what “Chung Loi” and the contact person had told the appellant during the controlled delivery.  The prosecution also relied on the appellant’s telephone records and the frequent contact he had before and after his arrest with “Chung Loi”.

34.The Court of Appeal allowed the appeal because of the manner in which the case had been advanced against the appellant, including reliance by the prosecution on the controlled delivery operation evidence.  On this issue, Anthea Pang J (as Anthea Pang JA then was), giving the judgment of the Court, said:

“44. Mr Eric Cheung pointed out that during the controlled delivery, the applicant was required to follow the instructions of the Customs Officers in having conversations and might not respond according to his own state of mind and perception, and therefore it was indeed unfair to the applicant for the prosecution to emphasise such conversations. For instance, even if the applicant wanted to raise a question upon hearing ‘Chung Loi’ mention that ‘it’s dangerous to hold the things on the streets’ or wished to clarify with ‘Chung Loi’ what was being referred to as ‘dangerous’, given the passive role he was playing at that time, there was no way for him to make enquiries.

45. This Court agrees with Mr Eric Cheung’s observation.  If the jury took into account the applicant’s response and conduct during the controlled delivery, or to put it more accurately, the applicant’s failure to respond or act, such as his failure to raise queries with ‘Chung Loi’ or the recipient of the goods, or to indicate that he did not understand something and so on, and as a result drew an adverse inference against the applicant, is apparently unfair to the applicant.”

35.In the present case, Mr Yuen submits that a controlled delivery operation was conducted under the instructions of the Customs officers and, therefore, sought to create artificially manufactured circumstances in which to entrap the other persons involved in the trafficking of the dangerous drugs.  There is some validity in this submission to the extent that a defendant will be acting on instructions from the Customs officers and usually in circumstances to convey the impression that the smuggling of dangerous drugs into Hong Kong has been successful.  The instructions from the Customs officers and the defendant’s own statements and conduct would, therefore, be directed to effect a successful delivery of the dangerous drugs, and the question arises whether this should be held against the defendant in such circumstances. 

36.In the present case, PW1 said he told the appellant that a controlled delivery operation meant he had to pass the two parcels to the person who came to collect them.  PW2 told the appellant that if someone asked him why he did not answer the telephone call, he should say that it was because he had a quarrel with his girlfriend.  PW2 acknowledged that he had suggested this lie to the appellant.  There were four incoming calls and one outgoing call with the contact person.  It would appear the contact person suspected that something was wrong because, in the last call, the appellant told him that the person had not yet come to collect the goods, and he asked him how he should deal with them, to which he responded that if there was anything about the goods he will find a lawyer for him.  The appellant then said, “there is no reason for me to carry the goods and walk around”, to which the contact person said if anything happens, he would find a lawyer for him and abruptly terminated the call.[23]

37.Mr Derek Lai, with Mr Anson Lai, for the respondent, submits that “instruction” alone would not automatically render the evidence arising from a controlled delivery operation unfair or inadmissible. What should be considered is what was actually said by the officers to the appellant, and the content of the conversations between the appellant and others, including the contact person.  He accepts that the reliance by the prosecution upon the appellant’s statements, particularly the one where he said, “no reason to carry the goods around”, was not appropriate.  He lists three matters that lead to this conclusion.

38.First, prior to the controlled delivery, the appellant had been told during his arrest that the parcels contained ketamine. Therefore, it would be unfair to rely on his utterance during the controlled delivery operation that “there is no reason for me to carry the goods and walk around” to prove he knew the parcels contained dangerous drugs prior to his arrest.  Secondly, the appellant, under caution, stated that he thought the parcels contained “some prohibited weapons”.  The appellant’s utterance of “no reason for me to carry the goods and walk around” was equally consistent with someone in possession of “prohibited weapons”.          Thirdly, one of the Customs officers instructed the appellant that he “had to” pass the two parcels to the person who came to collect them.  In the fifth call, the contact person tried to end the conversation, and it was at that stage the appellant made the utterance in question in an effort to try to persuade the contact person to come and collect the parcels.

39.Notwithstanding that the Judge reminded the jury that the appellant was under the instructions of the Customs officers and that “he might not be as free to respond in a way which otherwise would have been had he not been so monitored”, there was a fundamental issue as to the fairness and reliability of the appellant’s utterance to prove he knew the parcels contained dangerous drugs. 

40.In the circumstances, Mr Lai very properly concedes that the jury should not have been invited to consider the appellant’s statements made during the controlled delivery operation.

Discussion

The relevant principles

41.The Customs and Excise Department (Customs) is the law enforcement authority that is usually responsible for the investigation of the importation of dangerous drugs into Hong Kong.  If a person has been arrested for possession of dangerous drugs that have been imported into Hong Kong, a Customs officer will, in an appropriate case, seek the consent of the arrested person to take part in a controlled delivery operation.  If the arrested person consents to do so, the Customs officer will arrange for him or her to complete and sign a PE Form. 

42.Over the years, there have been various iterations of the PE Form, mainly addressing the terms of the caution administered to the arrested person and the conditions of his or her participation in a controlled delivery operation. 

43.The first version was employed in Choi Chi Tak, which was similar to the caution administered to an arrested person in a record of interview, where the arrested person would be cautioned and asked a series of pro forma questions relating to the case.  The last question in this version asked the arrested person if he would cooperate with Customs and participate in a controlled delivery operation. 

44.The second version was employed in the present case in which the arrested person is cautioned and asked if they would consent to participate in a controlled delivery operation.  After giving his consent, he will then be asked to copy a declaration, indicating he understood that he had a right of silence.  The arrested person is reminded that even if he consents to take part in the controlled delivery operation, it does not mean that he will be exempted from prosecution or will receive any deduction from his sentence in any future trial, such matters to be decided upon by the Department of Justice and the court.  There is a printed declaration in which the arrested person states that “no Customs officer has provided with any benefits, conditions or commitments as a return for his participation in the controlled delivery operation.”  The final part reminds the arrested person that he has a right to stop the operation and the officers from checking his mobile telephone at any time.

45.The third version modified the second version by adding a warning against self-incrimination in the following terms, “what you say or do during the controlled delivery operation may be used as evidence against you”.  The printed answer the arrested person is asked to adopt is similarly modified with the addition, “I understood that what I say or do during the controlled delivery operation may be used as evidence against me.”

46.Mr Lai submitted that the third version included the self-incrimination warning as a result of a ruling by Wong J in HKSAR v Yano Hiroki [24]. In his ruling, Wong J noted that the defendant in the case understood that taking part in the controlled delivery would not afford him any benefit, but he was not told that he was free to decide not to participate.  Moreover, the defendant was not advised that if he was to participate in the controlled delivery, such conduct might be used as evidence against him.  It followed that the defendant might not made the decision voluntarily.  He held that the fact the defendant had been cautioned was not sufficient in the circumstances, as the ordinary wording of a caution is aimed at making a statement.  He accepted that in some situations, a confession could take the form of conduct or a statement, but not every person would appreciate that participating in a controlled delivery would or could amount to a confession.

47.Before we proceed to analyse this ground, it is appropriate to set out the fundamental principles and recent developments regarding the admission into evidence of a defendant’s confession or admission. A confession by an accused to an offence or an admission of a fact that goes towards proof of guilt is a statement against interest and, therefore admissible as an exception to the rule against hearsay.  When the prosecution, as part of its case, relies on such a statement, it must establish beyond a reasonable doubt, when challenged as to its admissibility, that the confession or admission was voluntary, and if found to be voluntary and admissible, the court retains a residual discretion to exclude it as a matter of fairness to the accused.  It has been held that, applying the principles of R v Mushtaq [25], the jury should be told that (1) if they found that any confession or admission made by an accused was or may have been obtained in circumstances of oppression or in consequence of anything said or done which is likely to render any confession or admission unreliable then they must disregard it; and (2) they must disregard such a confession or admission even if they are sure it is true: see HKSAR v Pang Hiu San [26] and HKSAR v Yiu Chi Ming [27]. Accordingly, in order to reflect the judgment of R v Mushtaq, a jury should be directed to consider the following three steps: (i) whether the defendant made the confession or admission, if not or may be not, they should disregard it; if yes (ii) whether the confession or admission was made or may have been made in circumstances of oppression or in consequence of anything said or done which is likely to render the confession or admission unreliable; if yes they must disregard it, but if not (iii) whether the confession or admission was true. 

48.It is not uncommon for law enforcement officers to arrest an offender in the course of a crime and, with the arrested person’s consent and cooperation, to arrange for him to continue with his criminal conduct in order to apprehend other suspects involved in the crime.  In this sense, a controlled delivery operation is essentially an undercover operation. The arrested person, having agreed to participate in a controlled delivery operation, acts as an undercover operative in order to apprehend other suspects.  In the context of an undercover operation, the fundamental principles and rules in relation to the admissibility of a statement against interest are important considerations. 

49.The Court of Final Appeal in Secretary for Justice v Lam Tat Ming & Another [28], addressed the relevant principles regarding evidence obtained against an accused in an undercover operation.  The difference in the present case is that the prosecution relied on the evidence of the undercover operation to use it against the undercover operative, not the potential suspects.

50.The parties in this case and Choi Chi Tak did not refer to the observations and principles in Lam Tat Ming and the policy considerations regarding entrapment, which we consider would be apposite when examining the appropriateness of the use of evidence emanating from a controlled delivery operation. 

51.Li CJ, with whom the other judges agreed, in Lam Tat Ming, noted that the undercover operation in that case was concerned with alleged criminal offences that had been completed, and the purpose of the operation was to obtain confessions from the suspects involved.  This was contrasted with an undercover operation where the criminal activities are ongoing and the offences had not been completed and, therefore, different considerations apply.[29] As recognised by Li CJ, undercover operations are a legitimate and useful form of law enforcement that by their nature will be covert and surreptitious:[30]

“The law recognises that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies; particularly their use when the criminal activities are ongoing but also their use after crimes are completed to obtain evidence to bring the criminal to book. The use of undercover operations plays an important part in society’s struggle to combat crime especially serious crime, whether it be corruption, trafficking in dangerous drugs or terrorism. But the success and indeed viability of such undercover operations depend upon the concealment of the true identity of the law enforcement officer in order to establish the appropriate relationship with the alleged wrongdoers. They therefore unavoidably involve elements of subterfuge, deceit and trickery. The law accepts that law enforcement agencies may find it necessary to resort to tactics of that kind.”

52.Li CJ discussed the principles relating to voluntariness, noting that they were “an essential safeguard for the accused against the coercive power of the law enforcement agencies”.[31]  He explained that the underlying rationale of the principles is based on the need to ensure the reliability of confessions as well as the right of silence (the right to silence or the privilege against self-incrimination).[32]  Consequently, an accused’s right to a fair trial is engaged and is a paramount consideration when determining whether to admit into evidence a confession or admission allegedly made by him.  He set out the test and principles that should be observed when considering to admit into evidence a voluntary confession or statement by an accused:[33]

“The Judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as a single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused. The essential question is not whether the law enforcement agency has acted unfairly in a general sense. It is no part of the court’s function to exercise disciplinary powers over the law enforcement agencies or the prosecution as regards the way in which evidence they seek to adduce a trial was obtained by them. See R v Sang [1980] AC 402 at p.436G (Lord Diplock); R v Cheung Ka Fai & Another [1995] 2 HKCLR 184 at p.195 40 (Litton V-P). The court’s function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.

The test of unfairness is not that of a game governed by a Sportsman’s code of fair play. See R v Sang [1980] AC 402 at p.402 at p.456D-E; R v Swaffield (1997-98) 192 CLR 159 at pp.185-6, para.35 (Brennan CJ). Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused. R v Sang at p.453C (Lord Scarman); Scott v The Queen [1989] AC 1242 at p.1256A-B. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent. See R v Sang at p.437B (Lord Diplock), p.456E-F (Lord Scarman); A-G v Lam Man Wah (No 2) [1992] 2 HKC 70 at p.72C.

The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal: (1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded.  (2) No one can be convicted except upon the probative effect of admissible evidence.  To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles.  R v Sang [1980] AC 402 at pp.436h-437D (Lord Diplock) and p.455C-E (Lord Scarman).”

53.Li CJ went on to detail the two principles.  He said that where the confession has been obtained in breach of the Secretary for Security’s Rules and Directions for the questioning of suspects and the taking of statements, this was a matter to be considered by the court in deciding whether to exercise its discretion to exclude as it relates to principle (1). He illustrated how principle (1) applied by reference to the case of R v Payne [34]. In that case, the defendant subjected himself to a medical examination at a police station following a car collision after it was made clear to him that its purpose was to see if he was suffering from any illness and disability and it was no part of the doctor’s duty to examine him to determine his fitness to drive.  The doctor testified that the defendant was under the influence of drink and unfit to drive.  It was held that had the defendant realised that the doctor would give evidence as to his fitness or unfitness to drive, he might have refused to allow himself to be examined and accordingly, although the doctor’s evidence was admissible, the court, in the exercise of its discretion, should have refused to allow it to be given.[35]  

54.Li CJ illustrated how principle (2) applied by explaining that the judge may, in his discretion, exclude admissible evidence where its prejudicial effect is out of proportion to its probative value or where admissible evidence is so unreliable that no tribunal of fact properly directed may convict.[36]  

55.The circumstances in Payne’s case are relevant to the present case.  In a typical case, a person arrested for bringing drugs into Hong Kong is asked for his consent and cooperation to participate in a controlled delivery operation for the purpose of securing evidence against other persons involved in the importation of the drugs.  Having obtained the arrested person’s participation on that basis, it would be seemingly unfair to use the evidence gathered during the operation against him.  Like the doctor in Payne’s case, had the arrested person known that what he had been asked and agreed to do was in order to secure evidence against him, he may very well have refused, notwithstanding he is warned that what he says or does may be used in evidence against him.

56.Shortly after Lam Tat Ming, the House of Lords in Attorney General’s Reference (No 3 of 2000) (Looseley)[37], considered the issue of entrapment in respect of undercover operations, discussing the policy considerations that apply in such circumstances. 

57.The House of Lords, having rejected entrapment as a substantive defence, held that where an accused can show entrapment, the court may stay the proceedings as an abuse of the court’s process or it may exclude evidence pursuant to section 78 of the Police and Criminal Evidence Act, 1984 (in similar terms to the residual discretion in Lam Tat Ming).[38] 

58.In giving their opinions on this question of law, their Lordships expressed concern when an agent of the state, usually a law enforcement officer or a controlled informer, causes someone to commit an offence in order that he should be prosecuted.[39] This was reflected by the following comments of Lord Nicholls of Birkenhead:[40]

“… every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment … is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizen and make sure this does not happen.”

59.As in Lam Tat Ming, the House of Lords in Looseley examined an undercover operation in terms of the boundary between permissible and impermissible law enforcement conduct, making the observation that where such conduct was impermissible, it would be objectionable if it resulted in the commission of “artificial or state-created crime”.[41]

60.Lord Nicholls identified that a useful guide when considering whether the conduct of law enforcement amounted to inciting or instigating crime or luring a person into committing a crime was to ascertain whether the law enforcement officer did more than present the defendant with an unexceptional opportunity to commit a crime.  If the law enforcement officer’s conduct was no more than might have been expected by others in the circumstances, this would not constitute entrapment and the law enforcement officer “did not create crime artificially”.[42]

61.Lord Hutton, in similar remarks, explained that particular emphasis is placed on the need “to consider whether a person has been persuaded or pressured by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer.”[43]

62.Their Lordships held that it would be unfair and an abuse of process if a person had been lured, incited or pressurised into committing a crime that would not otherwise have been committed, but it would not be objectionable if a law enforcement officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime, and that person freely took advantage of the opportunity.  Whilst their Lordships examined the concept of entrapment from the potential suspect’s perspective, the views expressed about the boundary between permissible and impermissible law enforcement conduct would apply with at least equal force in the context of an undercover operative (the arrested person), who has cooperated with law enforcement to participate in the undercover operation.  Even though the arrested person is aware of the undercover operation, the question is whether the conduct of the law enforcement officers has led him to believe that the target of the operation is other persons, not himself.  As stated in the quoted remarks of McHugh J in Ridgeway v The Queen [44], “once the state goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means.”[45]

63.We observe that the circumstances in the present case concerned post-arrest conduct, and the question that arises is whether this evidence should have been excluded at trial. 

64.It has been argued that if an appropriate caution is administered to the arrested person, warning him against self-incrimination, this would avoid or ameliorate any unfairness to him.  Given the terms and scope under which a controlled delivery takes place, we do not think the issue is that straightforward.

65.A person found bringing dangerous drugs into Hong Kong may cooperate with Customs for various reasons, but primarily because he wants to avoid or minimise his criminal liability.  In these circumstances, it is fundamental that the arrested person makes an informed decision and voluntarily agrees to participate in a controlled delivery operation.  In consenting to participate, an arrested person’s cooperation involves him portraying that he has successfully brought the dangerous drugs into Hong Kong or received the dangerous drugs sent to Hong Kong, and communicating and making arrangements with the contact person to collect them.  For this purpose, the arrested person consents to be monitored and instructed by the Customs officers and agrees for Customs officers to check and use his mobile telephone.  The Customs officers will be privy to what he says and does as well as what is said or done to him by others who have made contact with him.

66.The controlled delivery operation will, in all likelihood, produce incriminating material against the arrested person, which would not have been available to Customs if not for his cooperation.  Incriminating material against the arrested person will most likely arise because he is continuing with the importation of the drugs and acting on instructions from the Customs officers.  A controlled delivery may involve the arrested person playing a proactive and/or passive role depending on the circumstances, and in either role, it is likely to produce incriminating material against him.  What an arrested person says or does during a controlled delivery is prima facie evidence against him.  In this context, if his consent to and participation in the controlled delivery has been shown to be involuntary, it would be ruled to be inadmissible or, depending on the circumstances, excluded for unfairness.  In any event, we consider that there is an inherent element of unfairness to an arrested person when the prosecution uses his statements or conduct in a controlled delivery against him, where the purpose of the controlled delivery is to secure evidence through the arrested person against other persons involved in the importation of the drugs.

67.It is difficult to imagine a case where an accused’s statements or conduct in a controlled delivery would be admitted into evidence for the purpose of drawing an adverse inference against him.  Nevertheless, there may be exceptional circumstances where the accused’s statements and conduct are admitted into evidence.  However, this would be subject to the accused having received a proper caution and warning that he need not take part in the controlled delivery and agreed to do so voluntarily, as well as an overall assessment of the nature and circumstances of the controlled delivery and whether the evidence in question should be excluded as a matter of fairness to the accused.  If the accused’s statements or conduct are admitted into evidence, the judge should give a direction to the jury in suitable terms, applying the relevant specimen direction in respect of a defendant’s confession, informing them of the purpose and terms of the controlled delivery operation, including the limitations and conditions under which the accused participated in the controlled delivery, and directing them that if the statements or conduct might have been obtained in circumstances of oppression or in consequence of anything said or done which is likely to render them unreliable, they must disregard them. 

68.Where the arrested person deliberately conducts himself contrary to the purpose and terms of the controlled delivery operation, for example, if he attempts to tip off others or sabotage the operation, in such circumstances, he is no longer a participant in the controlled delivery operation and is continuing his involvement in the crime.  Hence, what he says or does would not be subject to the right of silence and the principles relative thereto.  Accordingly, in such circumstances, what the arrested person has said or done may be used in evidence against him. 

The present case

69.There is a matter of whether the parties at trial properly addressed the admissibility of the controlled delivery operation evidence.  The appellant challenged in a voir dire the voluntariness of his participation and statements in the controlled delivery operation, and, if ruled voluntary, applied to the Judge to exercise her residual discretion to exclude the evidence because of unfairness to him.  The Judge ruled that the appellant’s statements in the controlled delivery operation were voluntary and refused to exercise her residual discretion to exclude this evidence.  As is apparent from the summing-up, the Judge gave the standard specimen directions regarding the voluntariness and reliability of the appellant’s out-of-court statements.  She gave the additional directions in respect of the controlled delivery evidence, instructing them to take into account that the appellant was acting on instructions from the Customs officers and consider what weight, if any, they should give to the appellant’s statements. 

70.Notwithstanding the judge’s instructions to the jury, the issue was whether this evidence should have been before them at all. The respondent has properly conceded that the jury should not have been invited to consider this evidence, but we would go further and say that it should not have been admitted into evidence because it was unfairly prejudicial.  The appellant’s defence at trial was that he did not know the parcels contained drugs when he brought them into Hong Kong.  After his arrest, the appellant had been informed that he was participating in a controlled delivery operation to assist Customs officers in apprehending others involved in the importation of the drugs.  To this end, he was directed to effect collection of the parcels of the drugs, and acted under the instructions from the Customs officers.  It was not reliable evidence against the appellant because it was a product of an undercover operation where he was acting on instructions and, by his statements and conduct, seeking to achieve the operational objective of delivering the parcels of the drugs.  We consider it unfair to submit to the jury that they could draw from such evidence an inference that the appellant knew there were drugs in the parcels.  The respondent rightly has identified three matters that rendered the use of such evidence unfair in the circumstances.  

The proviso

71.Mr Lai submits that this is an appropriate case to apply the proviso on the basis that no miscarriage of justice has actually occurred.  He argues that although it is conceded that the appellant’s statement of “no reason for me to carry the goods and walk around” should not have been taken into account when considering the issue of knowledge, it was not a statement of direct admission of knowledge of dangerous drugs and any prejudice was minimised by the Judge’s direction to the jury that the appellant was under instructions from the Customs officers and might not be free to respond.  Moreover, there was overwhelming direct and circumstantial evidence demonstrating that the appellant knew that the parcels contained dangerous drugs.  Mr Lai referred to the appellant opening a virtual office account on 18 March 2019 in preparation for the arrival and receipt of the parcels containing the dangerous drugs.  He also referred to what he characterised as highly incriminating voice and text messages between the appellant and the contact person, in which there were references to “dd” (dangerous drugs); a $20,000 reward; the arrangement involving risk and great danger; the use of a Ghost telephone card; a location at Langham Place; and the office account being a sham.  Mr Lai further submits that there was no reference to “prohibited weapons” in the voice and text messages. 

72.Mr Yuen, on the other hand, argues that this is not an appropriate case to invoke the proviso.  He disagrees with the respondent’s submission that there was only limited possible prejudice arising from the controlled delivery operation evidence.  He submits that the impugned evidence was prejudicial and may have had a bearing on the jury’s evaluation of other evidence that was before them to consider.  He also submits that the case against the appellant was not overwhelming, and the voice and text messages were open to interpretation and supported the appellant’s case that he thought the parcels contained “prohibited weapons”.

73.It is arguable that the voice and text messages are open to interpretation, which is best done in the context of the whole of the evidence at trial.  This is illustrated by the following messages.  In a text message, on 27 February 2019, the contact person said to the appellant:

“6. Although it’s a bit dangerous, it is the fastest. Of course I will also find something else first, after all dd is too dangerous.”

74.In a voice message, on 6 March 2019, the appellant asked the contact person:

“20. Hey, brother, brother, I want to ask how much it is to run a round.”

The contact person responded to the appellant:

“21. It was thirty thousand for the previous deal. It would be less for this deal, only twenty thousand. I’m not taking a cut actually, haha. So, it’s better to find other people to do it. Make more money first. Wealth is sought in risk.”

“24. Well, that’s the thing. I do it slowly for everything I do. Yes. So, I’ll see what stuff he gives me, yes. That is, I mean, it’s not that I don’t play. I want very much to keep playing in this game, but then I mean, how to put it? I don’t know how to put it.

25. I mean, as you know it, some drug stores like to play a while and stop, play a while and stop, play a while and stop, right?

26. So, to be very honest, if it’s doing for real, won’t think of doing it long term then. Doing it for a month would be good, just do two, three rounds, that’s enough.

27. It’s, it’s also ok.  It’s also ok.  It’s also ok, right. Anyway, do however much there is.  It doesn’t matter.”

75.We are of the view that this is not an appropriate case to invoke the proviso.  We agree with Mr Yuen’s submission that it is difficult to discern how the impugned evidence may have influenced the jury and that the voice and text messages were open to interpretation by the jury depending on the facts they found proved.

Conclusion

76.It follows from what we have said that the appellant’s appeal against conviction is allowed and we order that the appellant be retried on a fresh indictment.

Mr Derek Lai, SADPP and Mr Anson Lai, PP, of Department of Justice, for the respondent

Mr Yuen Kwok Wah Bernard, instructed by Wat & Co, assigned by Director of Legal Aid, for the appellant