HKSAR v. Kwan Tsz Ngon

HCCC000265/1997

Headnote

Admission - Confessions - Rules and Directions for Questioning - Cautioned Statements

A large quantity of tablets made of ice was allegedly found in the possession of the defendant. At the scene where he was arrested, the defendant admitted possession. At the station, during an interview, the defendant confirmed his verbal admission. Then the defendant was charged. The defendant complained that the admission was concocted. He was also induced or threatened by the police to sign the record of interview otherwise his girlfriend would also be detained and charged. When the defendant was remanded in custody, the police allegedly made the same threats and inducements. As a result, the defendant through his lawyer made the same admission before the magistrates' court.

Held (1) In drug cases, discovery of dangerous drugs allegedly in the possession of the suspect is already sufficient evidence to prosecute, the police should therefore comply with Principle (d) in the Note to the Rules and Directions for the Questioning of Suspects and the Taking of Statements by charging the defendant or informing the defendant that he may be prosecuted. (2) The principles in the Note to the Rules and Directions are common law principles which should be strictly adhered to. Breach of those principles, but for exceptional circumstances, renders admissions or confessions inadmissible. (3) Rule III(b) of the Rules and Directions, stating that no more questions should be asked except for specific purposes, where a suspect has been charged or informed that charge may be laid, should be applied even where the suspect had not in fact been charged or informed if in view of the facts and circumstances the suspect ought to have been charged or informed that charge may be laid. (4) Admissions made by a defendant before the court whilst still labouring under threats or inducement may be ruled inadmissible.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: Depute Judge Li in Court

Date of Ruling: 2 December 1998

Date of Handing Down: 10 January 1999

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RULING

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1. In this case, the prosecution sought to introduce as evidence three admissions by the defendant. A voir dire was held at the end of which I ruled all admissions inadmissible. Here are my reasons.

2. The three admissions fall into three distinct categories: - (1) oral admissions by the defendant at the scene; (2) written admissions by the defendant during an interview at the police station; and (3) admissions through counsel on behalf of the defendant before the magistrates' courts. The essence of the prosecution case against the defendant is that the police allegedly found the defendant carrying a black plastic bag in which there were 999 tablets containing "ice". The gist of the admissions is that the defendant was carrying the bag at the request of his "big brother" and he did not know the real nature of the tablets. Such admission was allegedly made by the defendant orally at the scene, in writing at the station and through counsel before the magistrates.

3. The grounds of objection relied upon by the defendant, as detailed by his counsel Mr. Lee, were that:-

4. In a case like this, Thongjai and another v. The Queen [1997] 2 HKC 109 is clear authority to the effect that the trial judge must rule on voluntariness and consider exercising its discretion to exclude evidence for unfairness, on the assumption that the alleged admissions or confessions were in fact made. If the trial judge decides to exclude any admission, that is the end of it and there is no need to leave the admission to the jury. If the trial judge decides to allow production of evidence relating to any admission, such evidence must then be left to the jury for decision as a matter of fact whether the admission was made and what weight to be given to such evidence.

The Oral Admissions

5. According to PW1, after laying in ambush on observation for nearly an hour, he saw the defendant alighting from a taxi. He then followed the defendant carrying a black plastic bag into a restaurant. Inside the restaurant, on a stool next to the defendant, PW1 found a black plastic bag. The whole party then moved to outside the restaurant where PW1 conducted a search. He discovered that there were six transparent plastic bags inside the black plastic bags. The transparent plastic bags contained a total of 999 green tablets. PW1 asked the defendant what the substance was. The defendant replied, "Ah sir, both my girlfriend and I have nothing to do with it." PW1 then cautioned the defendant verbally in the standard form. The defendant then said, "Ah sir, it's my big brother who told me to collect it. It has nothing to do with my girlfriend." The net effect of this conversation is that the defendant admitted that he was in possession of the tablets.

6. Mr. Wong for the prosecution says that every verbal made by the defendant at the scene should be admitted. Even if I reject the first reply, what was said by the defendant after caution must be admissible. My attention was drawn to the judgment of the Court of Appeal in HKSAR v. Fung Wing-ching, C.A. 451 of 1997. The facts of that case are quite similar to the instant one. In that case, a police officer found "ice" in the waist bag of the accused. Without administering caution, the officer asked the accused what the substance was. The accused replied that it was "ice". Then the accused went on to say that he had more hidden in a nearby hillside and he would get them for the police. The trial judge ruled that the first question without caution about the nature of the substance found was quite proper and that even though a caution should have been administered at a later stage the verbal admissions that followed were also admissible. The Court of Appeal upheld the rulings by the learned judge. Mr. Wong says that I am bound by this Court of Appeal decision.

7. With respect, I do not think the Court of Appeal intended its decision on voir dire rulings which very much depend on the particular facts of each case to be taken as binding precedent.

8. In my view, the governing principles in this case are Principles (d) and (e) in the Note to the Rules and Directions for the Questioning of Suspects and the Taking of Statements ("the Rules and Directions") issued by the Secretary for Security dated 2nd October 1992. These two principles are:-

9. Mr. Lee says that Principles (a) to (e) are the embodiment of long established common law. Whereas the Rules and Directions issued by the Secretary for Security and the Judges' Rules are codes of practice, the said principles have the force of law in the sense that they bind the courts to uphold them. I think Mr. Lee must be right. My immediate concern is how to apply Principle (d).

10. The obligation to charge or to inform that charge may be laid is conditional upon there being enough evidence. If one leaves it to the officer to say, subjectively, whether he had enough evidence or not, there is the real possibility of abuse in that officers may be less willing to concede that they had enough evidence. There is also another mode of abuse. A team of officers may work under the charge of an inspector. Individual members of the team collected evidence and reported to the inspector-in-charge who therefore has an accumulation of evidence to lay charge. The inspector in an effort to gild the lily then instructs a subordinate officer, who has no knowledge of the totality of evidence already in the hands of the police, to obtain a confession statement.

11. In the premises, I think Principle (d) should apply in these circumstances: -

12. If the above proposition is correct, at the risk of stating the obvious, where an officer believes subjectively that there was enough evidence, even though in fact the evidence was insufficient to support any charge, the officer must either charge the suspect or inform the suspect that charge may be laid. If the officer denies that there was enough evidence, the evidence then available should be assessed objectively.

13. The acid test, for an objective assessment, I suppose, is whether the evidence in the hands of the police (not just the evidence in the knowledge of the investigating officer) was sufficient to mount prosecution. I have seen many cases like the instant one where, having found suspected dangerous drugs on the person of a suspect, the officer pretended that such finding was not enough to mount a prosecution because there was not yet a government chemist certificate to prove the chemical nature of the dangerous drug and, on that basis, the officer proceeded to interview the suspect and extracted incriminating answers from the suspect. The reality is, of course, that in every case where suspected dangerous drugs have been found, the suspect would be arrested whether he makes a confession or not and the substance would be sent for analysis. In due course, there would be a government chemist certificate so that that certificate plus the evidence of the officer who found the dangerous drugs on the suspect formed the basis of prosecution for possession or even trafficking. The record of interview or confessions in such cases constitute additional evidence only.

14. In the instant case, the officer asked the defendant what were the tablets which, allegedly, were in the possession of the defendant. I cannot understand how it can be seriously argued that there was not enough evidence to charge before this very first prejudicial question was put to the defendant. The acid test show that there was enough evidence because after all the verbals and written admissions had been rejected by me, the prosecution had no difficulty at all proceeding to trial before a jury on the basis of the evidence of finding.

15. Of course, if the defendant was willing to co-operate, there is nothing to prevent the police to investigate further even though there is already enough evidence to charge. If such further investigation is to obtain information leading to other suspects, I do not see why the police should use the record of the defendant giving further information as evidence against the defendant. Such practice would discourage free flow of useful information. If the purpose of further investigation is to obtain additional evidence against the defendant or to expose other offences committed by the defendant, the defendant ought in fairness and as a matter of law be charged first or be first informed that he may be charged.

16. Principles (a) to (e) are fundamental principles. I hold that law enforcement officers must observe these principles. Unless there are exceptional circumstances, verbals and written admissions obtained in contravention of these principles should be excluded. For enforcing these principles, I do not think it is right to adopt the reverse approach - exclude verbals and written admissions by way of exceptions only.

17. There is nothing exceptional in this case. Since the defendant had not been charged nor had he been informed that he might be charged when there was already enough evidence, the verbal admission was ruled inadmissible.

18. Moreover, the reasons in relation to Rule III of the Rules and Directions given for the record of interview below apply equally to the verbal admission. For those reasons, I would also exercise my residual discretion to exclude the verbal admission.

The Record of Interview

19. The prosecution case regarding the record of interview is that caution had been administered at the commencement of the interview. The defence says that there was no caution. For argument's sake, I would assume there was caution. However, by the time the defendant signed the record of interview, he had not been charged nor informed that he might be charged. Surely, even if there was not enough evidence to charge immediately upon discovery of the tablets, the verbal admission made by the defendant had provided the police with the needed evidence. At the commencement of the interview, there was ample evidence to mount prosecution. There was no reason not to charge the defendant or inform the defendant that charge may be laid before proceeding with the interview.

20. For this stronger case of breach of Principle (d), I would exclude the record of interview.

21. There is a second problem with the record of interview. Rules III(b) says that:-

22. If I am correct in the view that at the scene the defendant should have been charged or be informed that he may be charged, the officers having failed to do so, the questioning of the defendant back at the station would be in breach of Rule III(b) unless the purpose of the questioning is one of those mentioned in Rule III(b). However, Mr. Wong drew my attention to The Queen v. Collier and another [1965] 65 Cr. App. R. 344. In that case, the Lord Chief Justice delivering the judgment of the Court of Appeal held that the equivalent of Rule III(b) in the old Judges' Rules did not apply where in fact the suspect had not been charged and had not been informed that charge may be laid.

23. With the greatest respect, I do not think the English Court of Appeal had fully contemplated the implications of adopting a strictly literal interpretation of the rule. Mr. Wong argued persuasively that the Rules and Directions are not statutes to be enforced literally. His point was that breaches of the rules do not automatically render confessions inadmissible. I think indeed the rules should not be read and applied literally. It is the spirit of the Rules and Directions that is important. If Rule III(b) applies only when the defendant has been charged or been informed that charge may be laid, law enforcement officers over jealous in trying to put the nail in the coffin would delay charging or informing a suspect (against whom there is already enough evidence) until after they have extracted confessions from the suspect.

24. One should also bear in mind that most of the English cases on the Judges Rules involve situations where the police do need to make further enquiries, e.g. discovering of ordinary articles that may be used as offensive weapons or unlawful instruments. Since the mere discovery of a jemmy or a screw-driver is not necessarily sufficient to mount prosecution, the police cannot be faulted for questioning the suspect about the purpose of the article found. However, in Hong Kong, in the vast majority of cases where packets of lumpy white powder or large number of tablets in non-prescription bags are found, even where the police had no prior tip-off, they know quite well the substance is a dangerous drug and prosecution is a matter of course unless chemist analysis reveals that the substance is harmless. In the vast majority of these Hong Kong cases, further questioning of the suspect serves no other purpose than getting extra prejudicial evidence.

25. There can be no doubt, from experience, that a judge sitting alone or with a jury is able to convict a trafficker who was caught red-handed as a courier or keeper without any admission or confession by the defendant to the police. The inspector in charge in this case, when questioned in court why he was not interested in what the defendant said to the arresting officer under caution, retorted that the defendant had been caught red-handed. The arresting officer who allegedly obtained the verbals and conducted the interview at the station, when asked why he had to interview the defendant at the station, stated in court that he was not instructed by any superior officer to do so and he did it as a matter of course. I must say the result of such mindless routine does not assist the course of justice. The extra prejudicial evidence obtained only prolongs trial by unnecessary voir dire, not to mention the waste of police manpower in interviews.

26. I do not for a moment say that those eminent judges of the English Court of Appeal deciding on Collier in 1965 were wrong. But we in Hong Kong, as in the instant case, are dealing with different cases and have seen how tolerance of abuse of the Rules and Directions clog up the wheels of justice. Not only is there no need for extra prejudicial evidence, the extra evidence actually delays justice.

27. In my view, there was a clear breach of Rule III(b) in this case and, in the exercise of my discretion, I rejected the record of interview containing admission.

28. As to threats and inducements, the defendant alleged that the police told him to co-operate by admitting possession or else his girlfriend would be detained and charged. Having regard to what transpired at the scene and at the station, I thought there may be truth in the defendant's complaint. On the facts, therefore, I cannot be satisfied beyond reasonable doubt that the defendant voluntarily made the alleged admission during the interview.

29. Furthermore, the defendant complained that the alleged admission in the record of interview were concoctions by the interviewing officer. I did not think it was within my province to make findings of fact as to whether the interviewing officer concocted the admission. However, having regard to the contents of the record of interview which Mr. Lee convincingly pointed out contained composition mistakes and clear signs of wordings that could not have been the defendant's, I had reasons to suspect that the admission in the record of interview did not come from the defendant voluntarily.

30. In the premises, the record of interview was rejected also on the facts of this case.

The Admissions in Court

31. Mr. Wong contends that admission in court at any stage may be relied upon as evidence against the defendant. Mr. Lee draws a distinction in that the admission were made for the purpose of bail application only and should not be used against the defendant for the general issue. I do not think I have to form a definitive view on such fine point. However, if I have to, I am inclined to think that admission made at any stage of court proceedings may be used for any purpose in those proceedings.

32. The reality in this case is that the police might well have used involvement of the girlfriend as leverage to get the defendant to adhere to his alleged admission. The defendant, for fear of the police dragging his girlfriend into the case, gave a false premises for his lawyer to work on. In those circumstances, it is not right or fair to use the admission made by lawyer on behalf of the defendant in court. In exercise of my discretion, I also excluded the admission made before the magistrates' court.

Conclusion

33. In summary, I ordered that all admissions in whatever form to be excluded.

Representation:

Mr. Vincent Wong, S.G.C., for the Director of Public Prosecution

Mr. William Lee instructed by Legal Aid Department for the Defendant