HKSAR v. Lau Man Chung

HCCC 250/2024

[2026] HKCFI 5081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 250 OF 2024

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REASONS FOR RULING ON
ADMISSIBILITY OF EVIDENCE
(Video Recorded Interview and the relevant transcript)

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Background of the case

1.The Defendant in this case is charged with one count of trafficking in dangerous drugs[1] (namely, 850.58 grammes of ketamine and 0.33 grammes of MDMA).  In summary, a parcel containing two pairs of roller skates which concealed the said drugs were sent from Italy to the Defendant’s rented flat in Sham Shui Po as particularised on the Indictment (hereinafter “the Flat”) and the defendant was the named recipient (the consignee) of the parcel.  The Defendant collected the parcel on 27 February 2023 when it was delivered by Customs and Excise (C&E) officers by way of controlled delivery.  The Defendant was arrested and cautioned immediately after he collected the parcel.  The Flat was also searched.

2.After his arrest and caution at the scene, the Defendant was asked various questions about the parcel, he gave answers to some of those questions but chose not to answer others.  The entire exchange was recorded in the C&E officer PW1’s notebook which the Defendant signed and confirmed its accuracy.  The notebook contents and the Defendant’s responses contained therein are not the subject of the present application.

3.The present application concerns the cautioned video-recorded interview (“VRI”) that was conducted with the Defendant in the presence of his solicitor at the Headquarters of Customs and Excise after the Defendant’s arrest.  In the VRI, the Defendant answered the personal background questions posed by the C&E officers, but in relation to the questions concerning the parcel, the Defendant’s response was “I don’t remember” or “I don’t know”.

The Application

4.Prior to the empanelment of the jury in this case, the Court (on its own initiative) raised an issue regarding the admissibility of the said VRI (in particular the Defendant’s responses to the questions concerning the parcel) – in light of the observations made by the Court of Appeal in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 para.130-141, where a defendant exercised his right of silence only to some of the questions posed during an interview by law enforcement but gave answers to other questions – whether in such circumstances the interview record should be admitted into evidence in toto, in an edited form, or at all.  The Court invited submissions from the parties which were then heard after the jury empanelment.

5.Mr. So, counsel for the Defence, having been alerted to the issue and the judgment of Chan Kau Tai by the Court, then made an application to exclude the VRI on the basis that the Defendant was in fact exercising his right of silence during the VRI when he answered “I don’t know” to various questions relating to the parcel.  In the circumstances, Mr. So submits, either the entire interview should be excluded, or alternatively, those parts where the Defendant answered “I don’t know” should be redacted since a defendant’s silence (or refusal to answer questions) cannot be used against him in any way.

6.In making his application, Mr. So made clear that “voluntariness” is not in issue.  Furthermore, Mr. So confirmed that no objection is made with regard to PW1’s notebook, which contained, inter alia, the post-record of the Defendant’s answers and refusal to answer certain questions upon arrest and caution at the scene.

7.Mr. Raffell, for the Prosecution, submitted that the VRI is admissible as, on its face, the Defendant did not exercise his right of silence.  Instead, the Defendant in fact gave answers to questions even if the answer was “I don’t know”, which Mr. Raffell argued were lies and showed the Defendant was trying to evade the questions about the parcel when he clearly knew some of the details concerning the parcel.  In addition, Mr. Raffell suggests that certain parts of the VRI (i.e. counter 65 onwards) can be redacted so as to remove the specific question from the C&E officer and the answer given by the Defendant where he expressly confirmed that he will refuse to answer any further questions about the parcel.  Mr. So objected to Mr. Raffell’s suggestion of partial redaction, on the basis that the VRI should be viewed in its full and proper context if the VRI (with the impugned parts) is ruled admissible.

8.After consideration of the submissions by the parties, I agree with the submission of Mr. Raffell for the prosecution that, in the circumstances of this case, the VRI (and its transcript) is admissible as part of the prosecution’s case.  As to Mr. Raffell’s suggestion that certain parts of the interview (i.e. counter 65 onwards) can be excised, on this issue I agree with Mr. So and accede to his request that if the interview is ruled admissible, that part of the interview should not be excised as the full context of the Defendant’s answers in the interview as a whole and the full picture as to what was said should be provided to the jury for their consideration subject to specific directions as to how to approach this evidence.

9.Therefore I ruled that the video recorded interview and its transcript are admissible in toto as part of the Prosecution’s case.  I now provide my reasons for ruling.

The Legal Principles

10.The Court of Appeal in HKSAR v Chan Kau Tai (supra at §§ 126-138), provided an extensive review of the relevant authorities on the right of silence, they are summarised below.

11.The right of silence is one of the requirements of a fair trial.  In Secretary for Justice v Lam Tat Ming and Another (2000) 3 HKCFAR 168 at 179E, the Chief Justice, with whom all other members of the Court of Final Appeal agreed, stated : -

“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 trail for the accused, the court will exclude admissible evidence of the reception of which will compromise these principles. …”

12.In Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349 at 369E, Mortimer NPJ stated that:-

“55. … it is inappropriate in Hong Kong to use a person’s silence against him in any way.

56.  A person’s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.”

13.In R v Welch [1992] Crim LR 368, the trial judge allowed evidence of the interview with the accused to go before the jury in toto.  In those interviews, a number of questions had been put to the accused who answered them, but they were interspersed with questions which he declined to answer.  In allowing the appeal, after identifying three questions asserting the interviewing officers’ belief in guilt of the appellant, to which the accused had simply responded “Nothing to say”, Taylor LJ giving the judgment of the Court of Appeal in England observed:-

“The effect upon the jury may very well have been to make some of them wonder why on earth he [the accused] did not answer if he was an innocent man.  …

…it was extremely important that he [the judge] should give a proper direction as to their [the jury’s] approach to the interview.  They should have been reminded in regard to it that although he [the accused] was saying ‘Nothing to say’ at a number of points, he had every right to do that and was not bound to answer the questions.  The judge should have indicated to the jury that they should not infer guilt from his failure to respond.  … the learned judge ought to have indicated to the jury that accusations made in an interview by police officers, particularly accusations not supported by evidence elsewhere, did not amount to any evidence in the case, and that where the defendant declined to reply the net result of such questions and answers was nil.” (emphasis added)

14.In Welch, the English Court of Appeal referred to R v Mann [1972] 56 Cr App R 750.  At 757 of Mann, Widgery LCJ stated : -

“It is, of course, well established by authority that, if an accusation is made against a suspected person, the mere fact that he is silent in the face of the accusation is not the basis upon which an inference against him can be drawn.  If one wanted modern authority, it is found in HALL v. R. [1971] 1 W.L.R. 299.  If the accused had failed to respond and kept silent to every question, it may very well be that on that simple principle it would be said that the evidence of the abortive dialogue, the one-sided dialogue, should not be admitted.  But here one gets a different situation.  One gets a number of questions answered by the appellant, which means the questions and answers are clearly admissible, and interspersed with those are questions which he refused to answer.  There are a great many reasons, we feel, why in a situation of this kind it is right that the whole dialogue should go in before the jury.  Sometimes indeed it will be for the benefit of the suspect, although this time it must be right, Mr. Lewis says, that in the end it reacts against him rather than in his favour, but, subject always to the discretion of the judge in individual cases, we think a dialogue of this kind which is clearly admissible in part should go in in toto in the ordinary case.  We think that is a much more likely route to the truth, and we find no substance in the end in the complaint in this case that a blue pencil should have been used and those questions which had not been answered should have been excised.” (emphasis added).

15.In HKSAR v Chow Wing Man, CACC 613/2002 (20 August 2004, unreported), the trial judge allowed the prosecution to show the jury a video film of an interview with the accused in which he was not willing to answer any questions and also to produce a transcript of that interview.  On appeal, the Court distinguished Mann by stating that in that case, there could be no reason to adduce evidence of the interview other than to attack the Applicant’s credibility by his only giving an account for the first time at trial.  Stuart-Moore Ag CJHC observed : -

“63. We have concluded that the first interview … should not have been exhibited in either video or written form … The applicant’s silence, in the face of highly pertinent questioning on issues of crucial significance, may, we consider, have had an adverse effect on his trial.  The applicant had received legal advice, before the interview began, that he was entitled not to answer the questions he was asked and the caution, at the start of the interview, provided him with confirmation of his right to remain silent.  Although the judge made no adverse comment in this regard, and had directed the jury not to hold the applicant’s silence against him, we are driven to the conclusion that the jury may have used the applicant’s refusal to answer as a reflection on his credibility because they had seen on video and read in the record of interview the full extent of the questioning.  Such material should, in the particular circumstances which had arisen, have been excluded from their consideration.  It provided a wholly ‘one-sided dialogue’ to adopt the words of the judgment in R v Mann (above).  If the applicant had been selective as to which questions relating to the murder he chose to answer and those which he declined to do so, then no doubt the whole of the interview could have been admitted but the applicant answered none of them.” (emphasis added)

16.Applying these principles, I give the following analysis.

Analysis

17.Looking at the way in which the Defendant responded to the questions posed to him concerning the parcel.  I agree with the Prosecution that, on its face, the answer “I don’t know” is not exactly the same as “I don’t want to answer” or “no comment” (the latter examples clearly connote the exercise of the right of silence).  At least one of the possible interpretations is that the Defendant, by saying “I don’t know”, was intending to convey to the C&E officers that he did not in fact know the answer to the question posed.  In which case, as argued by Mr. Raffell, the Prosecution is entitled to test the credibility and reliability of that answer with the other evidence called by the Prosecution (including the Defendant’s answers at the scene of arrest).

18.I also bear in mind that, on the other hand, the other possible interpretation of the Defendant’s answer “I don’t know” is that he was in fact exercising his right of silence, but the way in which he did so was to use the phrase “I don’t know” as a form of standard answer to any questions posed about the parcel, as submitted by Mr. So.  If that was the case, then clearly when the Defendant said “I don’t know”, those questions and answers cannot be used against him in any way.  This is ultimately a matter for the jury.

19.At this stage, applying the legal principles stated above, even assuming arguendo that Mr. So’s interpretation is possible (that the Defendant’s answer “I don’t know” was his method of exercising the right of silence).  This in itself does not preclude the entire VRI to be adduced before the Jury, provided that proper directions are given to the Jury that:-

(1)  the Jury is not permitted to use the Defendant’s exercise of his right of silence in any way against him;

(2)  if there is any doubt as to what was meant by the Defendant when he used the phrase “I don’t know” during the VRI (i.e. whether he was simply using that phrase as a means of exercising his right of silence, or he was intending to convey that he did not in fact know the answer to the question posed) – then the benefit must be given to the Defendant and the Jury must treat his answer as an exercise of the right of silence, and therefore must not hold or use that answer against him in any way;

(3)  the Jury must not infer guilt from any purported failure to respond by the Defendant. 

20.The appropriate directions will be given to the Jury in the summing up.

21.Having ruled the VRI (together with the impugned questions and answers) admissible, I agree with Mr. So that counter 65 onwards of the VRI should not be redacted, that is because the C&E officer’s question and the Defendant’s response thereof may lend support to the Defence suggestion that both the interviewer and the Defendant had understood the phrase “I don’t know” (when given as an answer in the VRI) to mean the Defendant was declining to answer any questions relating to the parcel.

22.For the reasons stated above, I ruled that the VRI is admissible in toto as part of the Prosecution’s case.

Mr Andrew Raffell, Counsel-on-fiat, for the Prosecution

Mr Alan So, Counsel instructed by Messrs Cheung & Liu, assigned by DLA, for the Defendant