HKSAR v. Razaq Nadeen

CAC C 261/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 261 OF 2009

(ON APPEAL FROM HCCC NO. 198 OF 2008)

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BETWEEN

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Before: Hon Stock VP, Kwan JA and Lunn J in Court

Dates of Hearing: 8 and 9 March 2011

Date of Handing Down Judgment: 13 May 2011

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On 28 July 2009 the applicant was convicted after trial before Beeson J and a jury of three counts of murder.  He now seeks leave to appeal each conviction.

2.Between 13 and 16 March 2008 three female sex workers were murdered.  Each had died because of pressure exerted on her neck.

3.The applicant has lived in Hong Kong since childhood and attended school here.  He is married with a son and has a brother who also resides in Hong Kong.  He had a girlfriend in Macau and a place of residence there.

4.On the morning of 13 March 2008, the applicant travelled to Hong Kong from Macau.  He returned to Macau in the small hours of 16 March 2008.  It was common ground that during that time he visited the premises of each of the three women.

The issue at trial

5.The issue at trial was whether he had himself killed the women or whether, on the other hand, he had merely secured access to them for the benefit of a group of three men who, unbeknownst to him, intended to and did kill them.

The evidence

6.The first victim, Ms Sze, was killed at premises in Yuen Long; the second, Ms Sun, in premises in Tai Po; and the third, Ms Tse, in other premises in Tai Po.

7.The prosecution case was that they were killed by the applicant because he was in financial difficulties, probably as a result of a gambling debt in Macau, and that having killed them he ransacked their premises and took away property.

8.There was uncontradicted evidence that on 15 March 2008 the applicant attempted to withdraw money from an ATM machine using a bank card belonging to the third victim.

9.There was also uncontradicted evidence that on 17 March 2008, when the applicant was in Macau, he sent text messages to a brother in Hong Kong saying that “There is a big problem happened I have committed murder”; and “Please help me brother the police have already discovered the third murder.”  

10.On the evening of 17 March, police went with the applicant’s brother to Macau, having arranged with the brother to draw the applicant to the ferry terminal there.  At about 9:40 pm, the applicant was intercepted by Macau Judiciary police officers, an interception witnessed by Hong Kong police officers.  According to the prosecution case, the applicant was searched there and then by the Macau officers and on his person was found incriminating evidence connecting him with the property of the deceased women, including mobile telephones and bank cards as well as a cash withdrawal slip evidencing his attempt to remove money from the ATM machine on 15 March.  He was said to have made incriminating remarks to the Macau police, but the evidence of those was ruled inadmissible by the trial judge.

11.The applicant was accompanied back to Hong Kong by the Hong Kong police officers and upon his arrival at the Hong Kong terminal, and under caution, he is alleged to have said: “Ah Sir, let me say frankly to you.  I was forced to kill them.  I lost money in Macau.  They forced me to kill them (so that) I snatched some money to repay them.”

12.A few hours later, at Central Police Station, he consented to a video-interview which lasted about one and a half hours.  In the course of that interview, he provided detailed descriptions of each of the killings, including demonstrations of how he had killed the women.  The essence of his story, in that interview, was that he had borrowed money from three men in Macau but was unable to repay them and that it was at their behest that he killed the three women but not before, in the case of the first and second, having sexual intercourse and in the case of the third, a massage.  The men had previously obtained the applicant’s home telephone number and address after they had placed drugs in his drink and they used this knowledge in support of threats they made as to what would happen to him and to his family if he did not kill the women.  He said that because of what they threatened, he feared for his own life, as well as that of his mother and his brothers.

13.In relation to the first killing, he described how he had had to return to the premises because he had forgotten to remove the videotape which he thought was operating with the CCTV camera and that in his attempt to secure access to the premises for that purpose, he had cut his arm.  He also said that he had left his shirt in those premises.

14.In relation to the second case, he said he had left cigarettes in the premises and showed the police marks on his body which he said had been made by the victim’s hands.

15.In relation to the third killing, he said that he had left a lemon tea carton with a straw in the premises.

16.As for the three men, he said that he had managed to give them the slip in Tai Po after the third killing.

17.There was a further video-recorded interview in the late afternoon of 18 March, this time at police headquarters in the New Territories.  On this occasion, he identified the items which had been seized from his person by the Macau police upon his apprehension.

18.The applicant’s DNA was found on a shirt left in the first premises; in a used condom there; on a cigarette butt and in a used condom at the second premises; and on a plastic straw from a lemon tea packet found in the third premises as well as on fingernail cuttings of the third victim.  His palm prints were found on the door frame and on a wall at the outside of the first premises.

19.The effect of the applicant’s testimony at trial differed significantly from his account in the course of the interviews.  His evidence was that he had not killed any of the women but rather that he was told that if he secured entry for the three men into the various premises, the debt which he owed them would be forgiven.  This he had done with no knowledge that any killing was intended or was in fact carried out.

Equality and duress

20.The first ground of appeal reads as follows:

“The determination that as a matter of law the defence of duress is not available to an accused on a charge of murder was erroneous because it violated the appellant’s right to equality under Article 25 of the Basic Law.”

21.This was an argument run at trial by leading counsel.  Not surprisingly, it was rejected by the judge.  But it is pursued before us.

22.The argument is that the defence of duress is available for other offences such as wounding with intent, but not for the offence of murder and that “the differential treatment is illogical, arbitrary and discriminatory.”  In support of this contention, we were taken to criticisms by academic writers of the absence of the defence. 

23.Article 25 of the Basic Law says that: “All Hong Kong residents shall be equal before the law.”  

24.It does not say that one law that applies equally to everyone should be the same as the next law.

25.The point merits no further exposition.  The decision to advance it, here and below, and the failure so fundamentally to appreciate the ambit of Article 25, should be a matter of concern.

Evidence admitted under a letter of request

(1) Background

26.The second ground is a wide-ranging attack upon the admission into evidence of the deposition of one José Yip, an officer of the Judiciary Police in Macau.  He was one of the officers who apprehended the applicant at the ferry terminal in Macau on 17 March 2008, was present during, or took part in, the search of the applicant there, and then accompanied him to two premises in which searches were conducted before handing him over to the Hong Kong police who took the applicant back to Hong Kong.

27.In May 2009, an application was made to Beeson J pursuant to s.77E of the Evidence Ordinance for the issue of a letter of request to the Macau authorities to obtain evidence from Mr Yip for the purpose of the criminal proceedings pending against the applicant.

28.It is said that the deposition ought not to have been admitted because there was no evidence that it was not reasonably practicable to secure the deponent’s attendance in Hong Kong for the trial and, further, that such proper examination of Mr Yip as was attempted in the Macau proceedings was curtailed by the court there so that, in the event, unfairness was occasioned by admitting the deposition into evidence.

(2) The application

29.Section 77E(1) of the Evidence Ordinance, Cap. 8 provides that where it appears to the Court of First Instance that any criminal proceedings have been instituted in Hong Kong or are likely to be instituted here if evidence is obtained for the purposes of those criminal proceedings by virtue of an order made under section 77E, the Court may order the issue of a letter of request to a jurisdiction outside Hong Kong to assist in obtaining evidence for the purposes of those criminal proceedings.

30.The originating summons was issued on 5 May 2009.  

31.The affirmation in support of the originating summons is that of Detective Senior Inspector Lui.  It recites the allegations against the applicant, exhibits the warrant for his arrest and outlines the involvement of Mr Yip in the apprehension and search of the applicant at 9:40 pm on 17 March 2008 at the ferry terminal in Macau and the discovery of incriminating documents upon his person.  Paragraph 19 of that affirmation says that the evidence of Mr Yip of the applicant’s arrest and search and seizure “is essential to the prosecution”, and that the authorities in Macau have advised that they would assist in arranging for evidence to be obtained from him pursuant to a letter of request.

32.What is missing from this affirmation is any assertion that it was not reasonably practicable to secure Mr Yip’s attendance at the applicant’s trial in Hong Kong.  The significance of this omission is a matter to which we shall shortly turn.

33.The application was made ex parte but on notice to those acting for the applicant.  This emerges from correspondence exhibited (in non-chronological order) to counsel’s written submissions as well as from the fact that counsel for the applicant attended the hearing of the application.

34.In a letter dated 13 February 2009 to Mrs Panesar (counsel for the applicant), leading counsel then acting for the prosecution, Mr Arthur Luk SC, asked whether the Defence was prepared to admit the chain of evidence in relation to items seized from the applicant in Macau, namely, two mobile telephones, the ATM withdrawal slip, two bank cards and a telephone card.  He stated that: “As presently advised the Macau police officer who searched the defendant and found, among other things, the ... items may not be willing to come to Hong Kong to testify.  If we are required to elicit evidence from him we may have no alternative but to take out letters of request for taking evidence from him in Macau.”

35.An answer came by letter dated 26 February 2009 which said that the evidence would not be agreed by the applicant.

36.Then there was a letter from Mrs Panesar to Mr Luk dated 7 May 2009 saying that allegations of impropriety were to be raised against several police officers who guarded or escorted the applicant during the investigations in Macau and asking for the identity of those who escorted or guarded him, including those who were involved in the search for and seizure of exhibits.  A request was made for those officers to be tendered for cross-examination in the forthcoming criminal proceedings in Hong Kong.

37.Against that background, the hearing of the application for the issue of the letter of request took place on 8 May 2009.  Mr Luk informed the judge that: “We have made efforts to secure [Mr Yip’s] attendance in Hong Kong and to testify but we were informed in late April that definitely he is not coming over to Hong Kong to testify, and we have no other alternative but to resort to making the present application.”  He added that “the importance of [the evidence requested] is that upon the arrest of the defendant and seizure of exhibits from him and from his residence, there are five exhibits which would be highly relevant to the three offences with which he is charged”; namely, two bank cards; an ATM withdrawal slip; and two mobile telephones belonging to two of the victims.

38.Mrs Panesar was present for the applicant.  She said that she was “not here to resist the application and I have made that clear to ... Mr Luk.”  But she did say that there were allegations of impropriety against four officers from Macau who accompanied the applicant in Macau when he was taken from the ferry terminal to two addresses there and that she had asked the prosecution to identify them and tender them for cross-examination at trial, although she was “not sure whether, in due course, letters of request may have to be taken out in respect of those persons.”  Mr Luk replied that the Department of Justice had been in communication with the Macau Judiciary police but had not yet received a reply.  “No doubt,” said the Court, “Mr Luk will advise you if and when he hears from the Macau police.”

(3) The Letter of Request

39.The letter of request which was issued requested the courts of Macau to assist in obtaining the evidence of Mr Yip by examination under oath or affirmation on the following matters:

“… his interception and arrest of [the applicant] in Macau on 17 March 2008 and related investigations, operations and actions concerning [the applicant] including but not limited to searches of [the applicant] and his residence and seizures of documents, records and things arising therefrom, and handing over of [the applicant] and the seized documents, records and things to officers of the Hong Kong Police Force on or about 17 March 2008; … confirmation of the truth of the contents of the statement made by him on 17 April 2008 on the matters referred to above; and identification and production in evidence of any documents, records and/or things relevant to his testimony, including but not limited to the things referred to in Annex 2 hereof.”

40.The statement of José Yip to which reference is there made is dated 17 April 2008.  It addressed the circumstances of the arrest of the applicant in Macau, and what was revealed upon a search of him at the place of his arrest and later at a place of residence, as well as the handing over of the applicant to Hong Kong police.

41.There is nothing in the statement which suggested that Mr Yip was unable or unwilling to attend the proceedings in Hong Kong.

(4) The Macau hearing

42.The proceedings in Macau took place on 3 June 2009 at the Court of First Instance presided over by Judge Cheong.  We have no fewer than three versions of what took place:

(1) the deposition transmitted by the authorities in Macau and annexed to the Certificate issued by the Registrar of the High Court of Hong Kong pursuant to s.77F(5) of the Evidence Ordinance.  That deposition, which we shall call the unedited one, was not included in the appeal bundle.  It was handed to us in the course of oral submissions;

(2) the edited deposition, that is, the one produced to the jury after the judge had ruled inadmissible incrimination remarks allegedly made by the applicant to Mr Yip immediately after his arrest in Macau.  It is exhibit P342.  We shall refer to this version as the deposition; and

(3) the statement of Mr Felix Hoe, a Hong Kong barrister who attended the Macau hearing as Chinese interpreter for the applicant’s legal team and his manuscript notes of those proceedings.  It was provided to this Court in the course of the hearing.

43.Mr Hoe exhibited to his statement a list of questions which were handed to the applicant’s designated lawyer in Macau for him to put to Mr Yip. These questions included suggestions that the applicant had been pushed to the ground upon his arrest and handcuffed and told to shut up and that he was assaulted and told that he had to cooperate and that upon his arrest he said that he thought he was being arrested for fraud.

44.It was common ground that the Hong Kong police team acted as mere observers of the arrest and followed the Macau police vehicle to places of residence but that the Hong Kong police did not themselves enter those places.  Mr Hoe’s notes of the proceedings in Macau do not purport to be a verbatim account.  As far as they go, they show that the prosecuting counsel asked whether the Macau police had offered any threats of violence or inducements at which stage defence counsel applied “to strike out the confession”, at which point the prosecutor said that that was an issue to be determined by the Hong Kong courts and the Court apparently said something to the effect: “Struck out, not recorded.”  

45.Nonetheless, the prosecutor asked whether when in Macau police custody the applicant was treated with violence or threats and the answer was no because he cooperated.  

46.According to this record, a series of questions was then asked by the defence lawyer, many of which questioned how the Macau police could be sure that the person they were arresting was the person sought by the arrest warrant.  Then defence counsel asked for the list of the five or six Judiciary police (presumably a reference to the arresting officers) at which point the Court intervened and questioned the utility of the question.  Then counsel for the defence made an allegation that the applicant had been pushed and assaulted at which point the Court intervened saying that that was not a question that was suitable to ask in those proceedings.  Counsel asked whether the applicant had ever been told to cooperate with the police and the answer was that he had not.

(5) The deposition

47.The deposition is in the form of a written record of questions put to the witness and answers which he provided.  It sets out the witness’ evidence about the apprehension of the applicant, an apparent attempt by the applicant to escape, the search of the applicant, what was found on him and the search of two premises.  The unedited version included the sentence: “The intercepted person of his own volition indicated that he knew the purpose of his being intercepted and investigated,” and the assertion that the applicant said that he had obtained the telephones, a cash withdrawal card and HK$1,000 as a result of robbing and killing two prostitutes.  These admissions or confessions were deleted from the deposition placed before the jury.  

48.But the edited version retained the following assertions:

(1) that the applicant upon his apprehension “put up a slight struggle and wanted to escape”;

(2) that upon his apprehension, a search was conducted immediately and that the applicant “willingly handed over the things found from his body, namely wallet, medicine, ID card, two mobile phones and etc.”, which items included two bank cards belonging to the third victim; the ATM withdrawal slip; and two mobile phones belonging to the first and second victims;

(3) that nothing of significance save some clothing was found at or near the places of residence visited; and

(4) in answer to the question “Has the intercepted person ever been coerced and threatened?” , the answer: “No, the intercepted person was willing to assist in the investigation.”

49.There is no reference in the original or edited deposition to the defence lawyer putting it to the witness that the applicant had been pushed and assaulted though there is a record of a question asking whether he had been required to co-operate with the police and told not to seek legal representation.

(6) Admissibility ruling

50.At trial, there was objection to the admissibility of Yip’s evidence.  The objection seems to have formed part of a wider voir dire the purpose of which was to determine also the admissibility of the confessions made in Hong Kong and of two buccal swabs taken in Hong Kong.

51.The judge held that the issue and transmission of the letter of request had been properly sought and supported and that the need for such a procedure was established.  “I am satisfied,” she said “that the proceedings in Macau were carried out within the ambit of the letter of request, albeit proceedings might not have been carried out precisely as they would have been in Hong Kong.  In those circumstances, if the court is satisfied that no unfairness is likely to occur, the deposition and any exhibits can, without further proof, be admitted as prima facie evidence of any facts stated therein.  The evidence of Mr Yip obtained pursuant to the letter of request can be accepted in evidence, subject to the exclusion of the alleged admissions.”

(7) The complaint

52.The ground of appeal asserts that the deposition was inadmissible because:

(a) there was no evidence which justified the conclusion that José Yip was unable to attend the trial of the applicant to testify;

(b) the proceedings in Macau deprived the applicant of a fair trial since there was no reasonable opportunity to cross-examine Yip; and

(c) the procedure adopted at the Macau hearing did not comply with the letter of request in that the lawyer appointed by the Court there to act for the applicant was not of the applicant’s choice and that he, the lawyer, was not permitted to cross-examine Yip on vital issues.

(8) Analysis

53.There seems to be a confusion in the arguments advanced between the validity of the issue of the letter of request, on the one hand, and, on the other, the admissibility of the deposition obtained pursuant to the letter of request.

54.Nothing has been placed before us which supports the proposition that the letter of request was unlawfully issued.  The conditions precedent set by s.77E(1) appear to have been fulfilled.

55.The clearly arguable point arises in relation to the reception of the evidence.  

56.Insofar as is relevant s.77F(1) of the Ordinance provides that:

“Subject to this section and section 77G, any deposition, together with any document or thing exhibited or annexed thereto, which is received by the Registrar pursuant to a letter of request issued by him under section 77E in respect of any criminal proceedings, shall on its production without further proof be admitted in those criminal proceedings as prima facie evidence of any fact stated in the deposition and in the document (if any) exhibited or annexed thereto if –

...

(d) ... the court is satisfied that any document (if any) exhibited or annexed thereto is the original thereof, or a copy thereof made by any photographic process, and that, having regard to the following matters –

(i) whether it is reasonably practicable to secure the attendance of the deponent, taking into account for that purpose his bodily or mental condition or the delay or expense likely to be caused in securing his attendance;

(ii) whether the deponent was cross-examined before such court or tribunal; and

(iii) any other matter which, in the circumstances, appears to the court to be relevant,

no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any document (if any) exhibited or annexed thereto being admitted in evidence under this section.”

57.There was no evidence placed before the trial Court (or indeed when the application for the letter of request was made) which informed the Court as to the practicability or otherwise of securing the attendance of the deponent, Mr Yip.

58.All that happened at the application for the issue of the Letter was an assertion from the Bar table by counsel for the prosecution that: “We have made efforts to secure his attendance in Hong Kong and to testify but we were informed in late April that definitely he is not coming over to Hong Kong to testify.”  

59.No evidence was filed in support of that assertion and there was not even a hint of a reason for his refusal or inability to come to Hong Kong.  Macau is within an hour’s easy journey from Hong Kong and there was no suggestion that Mr Yip was somehow incapacitated.

60.The failure on the part of the prosecution to place any evidence before the court below as to the non-availability of Mr Yip as a witness in Hong Kong formed a material part of the submissions made on the applicant’s behalf in objection to the admissibility of the deposition.  Counsel also pointed to the barrier erected before the defence lawyer in Macau in his attempt to question Mr Yip about police impropriety: it was all very well, counsel said, to stop the questioning on the basis that such issues were for the court in Hong Kong but it was hardly an issue that the court in Hong Kong could determine, if the relevant witnesses were not presented for cross-examination.

61.The response from leading counsel for the prosecution was that no formal proof was required that Yip “would not be coming to Hong Kong”; and that the difficulty in securing his attendance had been forecast in one of the pre-trial reviews.  “On 8 May, in this court,” he said “we submitted that we have satisfied your Ladyship that José Yip would not be coming over to Hong Kong to testify.... We submit that it is clear by now that it is not reasonably practicable to secure [his attendance].”

62.There then followed the following extraordinary proposition by leading counsel: “Moreover, we have in fact conducted proceedings in Macau to take evidence from him.  The event in itself demonstrates that this Macau police officer ... will be unwilling to come over to Hong Kong and there is to be no change in circumstances that would suggest José Yip will have a change of mind by coming over to Hong Kong.” (emphasis supplied).  He added that there was no requirement for evidence on oath or formal evidence about the non-availability of a witness.

63.We will say no more than that it is worrying to see submissions of this kind by counsel acting on behalf of the prosecution. The duty of a prosecutor, no matter the offence, no matter how strong the evidence, is to be sensible, fair and helpful in the presentation of arguments. In this instance, the argument was thoroughly untenable and ought not to have been advanced.

64.In these circumstances, the question is whether the judge’s decision to admit the evidence is nonetheless supportable.  We do not think it is.

65.The judge appears to have accepted the say-so of counsel that it was impracticable to secure Yip’s attendance, and to have enquired no further as to the basis of the suggested impracticability.  That is, with respect, not a proper basis upon which to come to a determination of the issue to which a court’s mind is directed by subsection (1)(d)(i) of section 77F.  To this day, there is not a scintilla of evidence that it was not reasonably practicable to secure Yip’s attendance at the trial in Hong Kong.  There was no evidence that he would not or could not come and – even in the several unsupported statements of counsel that he could not come – no reason ever advanced why that was so.  If indeed it was not reasonably practicable to secure his attendance, it would have been simple to say so either in an affirmation or in the testimony in Macau.  One is therefore bound to conclude that either there was no sound basis for the oral assertions or that the approach of those acting for the prosecution was slipshod.  In either event, a key condition precedent was not established.

(9) Conclusion on admissibility

66.For the reasons given it is our judgment that the deposition evidence ought not to have been admitted.  It is not in the circumstances necessary to address the other grounds replied upon in support of the inadmissibility argument, to which we refer at paragraphs 52(b) and (c) above.

(10) The effect of that conclusion

(a) The issues that arise

67.The question is what effect our conclusion has on the outcome of this appeal.

68.In this respect, the following questions are to be addressed:

(1) Might the deposition and/or the absence of effective cross-examination of the witness Yip have had a material impact on the judge’s decision to admit into evidence the admissions made by the applicant to the Hong Kong police?

(2) If not :

(a) might the deposition have had a material impact upon the jury’s assessment of the credibility of the Hong Kong Police witnesses or of that of the applicant; put another way, was the jury’s acceptance of the account of events disclosed in the answer to caution upon arrest and in the records of interview inevitable whether or not they saw the deposition? and

(b) was the chain of evidence of the applicant’s possession of the key exhibits inevitably established regardless of the evidence in the deposition?

(b) The voir dire

69.We are satisfied that the admission of the deposition can have had no material effect on the judge’s conclusions as to the admissibility of the various statements made by the applicant upon and after his arrival in Hong Kong.

70.Upon the voir dire, the applicant made the following allegations as to the conduct of the Macau police.  Upon his apprehension at the ferry pier, he was pushed to the ground and handcuffed.  He allegedly asked the officers who they were and why they had arrested him and he was told to keep quiet.  He was pulled to his feet.  He kept on asking what he had done wrong and they kept quiet.  He was not searched at the terminal.  He was taken to a vehicle.  In the vehicle he continued to ask why he had been arrested but he was punched.  They asked where he lived and he told them and when he asked again what he had done wrong, he was slapped on the face and they said: “It’s better for you if you co-operate with us, that’s the best for you,” and that if he co-operated with them they would co-operate with him.  They took him to a police station, and then they used a belt or wire to tie his thumbs together, to lock his wrists.  Then he was searched and they found on his person some money and his mobile telephone.  Then they went to the place where he lived and spent a few minutes there and he was driven back to the ferry pier.  Then he was asked about the clothes he had been wearing when he came from Hong Kong to Macau and one said to him: “Don’t play with me, otherwise you will be very seriously hurt.”  His face was slapped.  They went back to his place for clothes and he was told that if he did not co-operate he would be hurt badly.  Some clothes were retrieved from near his premises but they were not his.

71.As for the allegations against the Hong Kong police who assumed control of him once he had been placed on the ferry, he was still in handcuffs and when asked by them whether he knew why he had been arrested, he replied that it was maybe because of a fraud case.  He was told it was for three murders and he said “You kidding?”  He was then slapped.  He was told about the killings but he told the police that he was innocent and that he had done nothing.  He was hit again and felt very scared and he told the police how one of three men had asked him, the applicant, to go to the places where the women were to open the door for the men.  He was then told that during the forthcoming interview or interviews he was to say what the Hong Kong police told him to say, otherwise they would beat him to death.  They would teach him what to say.  If he did as they asked and spoke according to what he was taught, he would receive a lesser sentence.  He protested.  He said it was not fair; why should he say something which he never did?  But Chief Inspector Fong, took a blade and cut his arm.  The police would not accept his account that he had merely opened the door for the men and they insisted that he had to say it was all done by him.  When they arrived in Hong Kong, he was taken to an interview room, he was never cautioned and just signed a notebook without appreciating what he had signed.

72.At the Waterfront Police Station, to which he was next taken, he was refused access to his brother and was told that he could not have a lawyer present.  He was feeling very sleepy and had a headache and was refused a painkiller.

73.Then he was taken to the Central Police Station where the first video-interview took place.  Exhibits were placed in front of him, the provenance of which he was unaware.  He insisted on the presence of a lawyer but this was denied him.  Then his private parts were squeezed and at that stage he agreed to do as he was asked because it was painful, so much so that he started to cry.  Then they taught him in detail what he should say and how he should act.  As for his assertions during the video-recorded interview that he felt very energetic and was not sleeping, this was not true but he had said it because he wanted the matter over and done with.  He was not fluent in Cantonese; he had merely said that he was because that is what he was told to say.  He had not given consent to the taking of buccal swabs.

74.Against this background, the judge was, in our opinion, well placed to be satisfied that nothing untoward had occurred in Macau:

(1) There was evidence from the Hong Kong police officers who were in Macau at and after the applicant’s arrest, covering part, albeit not all, of his contact with the Macau police.  They observed his apprehension and a search of him at the time of his arrest.  The evidence of Chief Inspector Fong was that he saw that at the time of his arrest, the applicant was searched and handed items over to the Macau police.  The evidence of the officers was that he was not handcuffed in Macau, he did not have a belt or wire applied to him and had none on him at the time he was handed over.  This evidence contradicted material allegations made against the Macau police.

(2) There was no issue as to the possession by the applicant of the material exhibits.  The only issue was the stage and place at which they were seized.

(3) The allegations against the Hong Kong police were significantly more serious than those made against the Macau police and the judge was in an excellent position from which to judge the credibility of the applicant in relation to the allegations against the Hong Kong police and the credibility of the Hong Kong officers who testified.  We have had the advantage of reading the full interview but, more particularly, of seeing the video-recording of a section of it.

(4) The section of the video-recording which we watched was a vivid demonstration of a man unusually at ease, given the setting, verging on relishing the central role which he was then playing.  It showed no inhibition or reservation on his part in saying or demonstrating what he did; to the contrary, it showed a man entirely in command and proactive.  It is hardly surprising that the judge was convinced that this was not the conduct of the man who had succumbed to threats.

(5) The video-recording demonstrated, beyond peradventure, the falsity of the other central allegations:

(i) that the applicant was not fluent in Cantonese; and

(ii) that he had been coached by the Hong Kong police.

(6) A key allegation which he had made against the Hong Kong police as undermining his will was that they had cut him on his arm on the way to Hong Kong.  Yet this stood ill with his demonstration during the interview of how he came to cut his arm in seeking re-entry to one of the premises.  Once the judge was satisfied that he had not been coached to say this, a key tenet of his assertions was laid to rest.

(7) Central to Mr Haynes’ argument in relation to the Macau events is that it was impossible to say that what the judge saw and heard as to the events after the applicant came into the custody of the Hong Kong police was not “fruit of the poisoned tree”; the poisoned tree, in this instance, being such improper conduct as may have occurred in Macau.  The answer to this is twofold: first, that the judge was entitled from the evidence which was placed before her – to which we have alluded – to conclude that nothing, or nothing of significance, happened in Macau to undermine the applicant’s will; and, secondly, that the applicant’s own assertions as to his initial resistance to the insistence of the Hong Kong police that he confess and co-operate contradicts, at least to some extent, the argument that what was done in Macau may have sapped his will.

(c) Effect on the jury

75.As far as concerns the impact of the deposition on the jury, the passage which, says Mr Haynes, should, on any view, have been excised was the one which asserted that “the intercepted person [had never] been coerced [or] threatened.”

76.We agree that once the deposition was admitted, this passage should have been excised.  It went to the very issue which the judge said had not been proved by the evidence of Mr Yip.

77.The applicant argues that this Court should assume that the inclusion of this passage operated unfairly against him because it constituted an assertion not contradicted in cross-examination and provided a straightforward and “honourable look” to the process by which the applicant was seized.

78.For the same reasons as we have provided in relation to the judge’s conclusion as to voluntariness, we are satisfied that the impugned passage could not have had the effect suggested by the applicant.  We note as well that the judge pointed out to the jury that “the disadvantage of Mr Yip’s evidence is that there is no opportunity to cross-examine him, or indeed any of the other Macau judicial police.  It is a matter for you to consider whether or not you can accept his evidence depending on what your view is of the account given by the accused and by the other officers.”

79.As for the jury’s consideration of the chain of evidence, that, as we say, was not in real issue.

80.Accordingly, whilst in our judgment the letter of request ought not have been admitted, we are satisfied that its admission into evidence has resulted in no injustice.

(d) The identity of other officers

81.There is a further matter which we must address, which is the failure of the prosecution to notify the defence, as requested, of the identity of the other officers engaged in the applicant’s apprehension in Macau.

82.There is before us a letter dated 18 May 2009 in which Mrs Panesar asked Mr Luk to confirm what he has just told her over the telephone, namely, “that the Macau SAR police has refused to disclose identity of the other males/police officers involved in the arrest and subsequent search and seizure of the exhibits in Macau, except Yip José,” and she asked whether “the identity of the said … police officers [was] disclosed or known to the Hong Kong police during the arrest, search and seizure of the exhibits in Macau.  If so, please specify their particulars; and were any witness statements taken of the said … police officers?”

83.She received no reply to that letter and we understand from Mr Lee SC that there is no attendance note in the file to confirm the telephone conversation with Mrs Panesar or any notes in any file kept by Mr Luk or the Department which throws any light on the questions which were perfectly properly asked by Mrs Panesar.  The duty of the prosecutor is to assist where he can and to provide full and frank answers to defence questions, save where law (for example, on matters of public interest privilege) precludes him from doing so.  On its face, the conduct of the prosecution in this particular regard in not telling defence counsel whether the identity of the Macau officers was known to the Hong Kong police is unattractive and we are left with the less than satisfactory suggestion made by the respondent that it was always open to the applicant himself to seek a letter of request issued to the Macau authorities to answer precisely the questions posed.  That is true but that does not absolve the prosecutor from providing such assistance as he is able.  If the Hong Kong police did not know the identity of the Macau officers, it was easy enough to say so.  In any event, we see from the notes to Mr Hoe’s statement that there appears to have been an apparent attempt at the hearing in Macau to ask for the identity of the five or six officers other than Mr Yip but that the Court in Macau seemed to think that there was no use in that question.  It seems to us, on the face of it, that the question was perfectly permissible within the ambit of the letter of request.  The question and the Court’s response is not recorded in the deposition.

84.Why the Macau authorities refused to disclose the name of the other officers we do not know but it is hardly a satisfactory state of affairs.

85.The question at the end of the day is whether the applicant was denied a fair trial.  There was no application in the court below for a stay of proceedings on that basis though there was a stay application on another ground altogether.  The contention was limited to the fact that absent the production of these officers, the prosecution failed in its duty of proving the voluntariness of the statements made in Hong Kong and that the admissions against interest made by the applicant were therefore inadmissible.  For the reasons we have given that is a contention, in the context of this particular case, which correctly failed and we are satisfied that the credibility of those allegations was not even possibly weakened by the inability to cross-examine these officers.  As for the jury, the credibility of any suggestion that what happened in Macau had any bearing on the reliability of what the applicant said to the police in Hong Kong was inevitably going to be destroyed by his own evidence of what happened in Hong Kong when compared with the other evidence which the jury saw and heard.

86.We have recorded at paragraphs 52(b) and (c) above the submission that the procedures in Macau were flawed in that the applicant’s lawyer was appointed by the court and further that he was not permitted to cross-examine on vital issues.  Insofar as this submission goes to the question of admissibility, we doubt that either point would render the deposition inadmissible but as we have stated at paragraph 66 above, it is not necessary to address these complaints for the purpose of the admissibility issue.  Insofar as it is contended that those events precluded a fair trial, there was no application for a stay on those grounds and in any event, our answer to this ground is equally covered by the reasoning which concludes in paragraph 85 above.

Understanding his rights

87.The third ground of appeal is a complaint that the applicant’s admissions against interest were inadmissible because there was clear evidence that he did not understand the caution administered to him; because he did not understand his right to have a legal representative; because he did not comprehend his right of silence; and because the interviews ought to have been conducted in his mother tongue.

88.The complaint fails.  Much of it depends on the supposition that we are a trial court hearing the matter afresh but in any event it is clearly established from that which we have seen that the applicant understood precisely what was said to him.

89.What he could not do is read Chinese characters. In this regard, it is contended that the written record in the police officer’s notebook of what the applicant said after he arrived in Hong Kong ought not to have been admitted in evidence, because although the record was orally translated to him, he was relying on a translation when he signed it, so that he could not be said to have been adopting the record as his.  The words should have been written in a language he could read.

90.For this proposition, counsel relied on HKSAR v Mahat Prem Bahadur, CACC 722/1996, 25 June 1998, unreported.  In that case, the cautioned statements, not recorded by video, were ruled admissible by the judge, but the appeal was allowed on the basis that no voir dire had been held when it should have been and that the judge did not consider a crucial question whether an inducement had weighed on the mind of the applicant.  As an additional comment, the Court said:

“Although we have not had the advantage of submissions from counsel in this regard it seems to us that, as the statement was written in a language which the applicant was not conversant with, the written statement should never have been admitted as evidence as the maker of the statement did not himself know what was said in it. He could not sign the document and make it his own. He could only place reliance upon what he had been told by the interpreter.”

91.In this particular case, what was written down was indeed read over to the applicant in a language which he understood well, namely, Cantonese and it might be said that if there is reliable evidence of the accuracy of the interpretation and that the suspect immediately thereupon signed the passages thus interpreted, that suffices as an acceptance that that is what he has said.  But it is unnecessary to decide the point because we think it matters not in this particular case, given the fact that at the outset of the lengthy video interview which followed, the same passage was read out to him and it is apparent that he did not contest the fact that that is what he said after his arrest and caution by the Hong Kong police upon arrival in Hong Kong.

Reasons

92.The fourth ground asserts that there was a material irregularity in the failure of the judge to give reasons for her decision to rule as admissible the admissions against interest.

93.In her Ruling, the judge said that having considered the evidence she was satisfied beyond reasonable doubt that the oral admission and videotaped records of interview were made voluntarily and that she did not consider this to be a case where she should exercise her discretion to exclude evidence on the grounds of unfairness.

94.The present state of the law is summarised in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540 at para 25:

“A judge is not obliged to give reasons for making a ruling on the admissibility of a confession statement. However, there may be occasions where good practice requires a reasoned ruling, such as, where there is a question of law or there is an exercise of a discretion.”

95.We think that it would have been preferable in this case for the judge to have stated in terms why the absence of evidence from the Macau police as to what transpired in Macau caused her no doubt as to the voluntariness of statements made by the applicant after he had been handed over to the Hong Kong police.  But we think the underlying issue of facts to be clear enough and we are satisfied that the failure to provide reasons in this case do not constitute a material irregularity.

Buccal swabs

96.The next ground of appeal is as follows:

“There was a material irregularity in the course of the trial in that the buccal swab taken on 25^th April 2008 [was] in breach of the appellant’s inviolable rights under Article 28 of the Basic Law, and Articles 9 and 17 of the International Convention (sic) on Civil and Political Rights, Article 11(2)(g) of the Bill of Rights Ordinance, and the analytical results pertaining to the said buccal swab were admitted into evidence.”

97.Neither in the grounds nor in the written argument is there any articulation of the precise right allegedly breached under Article 28 of the Basic Law, or of what right or rights protected by Articles 9 and 17 of the ICCPR have allegedly been breached.  Indeed none of the provisions was placed before us either in the lists of authorities or in the written submissions.  Furthermore, none of the lists contain a copy of s.59C of the Police Force Ordinance, Cap. 232, whence derives the power to obtain such evidence.

98.Furthermore nothing in the written grounds or in the written submission by the applicant gives us any context for the complaint. For that we had to find the judge’s ruling on the point.  From that it is evident that on 18 March 2008, with the consent of the applicant, a police officer took from him a buccal swab.  There was then a mix-up in the labelling so that on 25 April 2008, with due authorisation from a police superintendent, and with the applicant’s consent, a second swab was taken.

99.The complaint, shortly put, appears to be that:

(1) there is statutory authority for obtaining only one swab, not two; and

(2) by analogy with the rules that govern the taking of statements from suspects after they have been charged, it was impermissible to take the second swab, because by the time the second swab was taken, the applicant had been charged.

100.Section 59C (1) of the Police Force Ordinance provides that :

“(1) In any investigation in respect of any offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if-

(a) that person is in police detention or is in custody on the authority of a court; and

(b) a police officer of or above the rank of superintendent ("authorizing officer") authorizes it to be taken.”

101.The remainder of this section specifies the conditions precedent for the taking of a non-intimate sample.

102.Quite apart from the provision of s.7(2) of the Interpretation and General Clauses Ordinance, Cap. 1 (to which neither party referred us) that words and expressions in the singular include the plural, it would be an entirely non-purposive construction of s.59C to hold that the legislature intended to restrict the power to the taking of one sample only.  The judge explained the nonsense of such a construction:

“To impose arbitrary limits on the number [of samples] could well render nugatory the aims of the legislation. There may be many valid reasons why a second, or subsequent, sample is required and is justified.

Samples may be lost or inadvertently destroyed.  There may be spoilage occasioned by storage breakdowns.  There may be confusion of labels or lost labels, both of which instances might mean that a suspect loses the advantage of being exonerated by DNA analysis, or that one person’s sample is attributed wrongly to another.  The integrity of the sample might be compromised, as in this case, where presumably the consent form could not be married to the sample barcode, which might affect the chain of evidence.”

103.As for the taking of the second sample after the time of charge, there is no challenge to the constitutionality of the statutory provision that enables the taking of samples and, given the subject matter, it cannot have been intended by the legislature to bring down the curtain at the time of charge, come what may.  It would in any event have been a question of the judge’s discretion and in the circumstances of the case we see no warrant for the exercise of her discretion in the applicant’s favour.

104.The answer is also to be found in the following passage from the judgment in Saunders v United Kingdom (1997) 23 EHRR 313, not included in either party’s list of authorities:

“69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contracting parties to the [European Convention] and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath and urine samples and bodily tissue for the purpose of DNA testing.”

Flight

105.Next, there is mounted a ground aimed at the judge’s direction in relation to the fact that the applicant left Hong Kong after the killings were discovered.  What the judge said was:

“It was admitted by the accused that he left Hong Kong deliberately after the killings were discovered and went to Macau. In fact, he went to Macau just a few hours after the last killing. You are entitled to consider whether that supports the case brought against him by the prosecution. You will need to consider first, whether it has been established that he did run away after these offences were allegedly committed. If you are sure he did run away, then you will go on to consider why he did run away. Again the fact that an accused acts in this way is not in itself evidence of his guilt. There are many innocent reasons why a person may leave abruptly or even run away. There may be a family or business crisis which means he has to go quickly. He gave evidence in his video interview that he was estranged from his family in Hong Kong. Although he was married, he had a girlfriend in Macau, so that was a reason to go back to Macau. He also said he had applied for a job as a receptionist some days before he had come up to Hong Kong. So that could have been a reason to go back as well. The accused said in evidence that he returned to Macau to escape the clutches of the loan sharks. He did not want to open any more doors. He wanted to know if the debt had been forgiven. If you think his explanation is true or that it may be true, then you should take no notice of the fact that he chose to go to Macau so swiftly. If you think there may be what might be called an "innocent explanation" for his leaving Hong Kong, you should take no notice of the fact that he chose to run away. It is only if you are sure that he did not run away for some innocent reason that his actions in leaving Hong Kong could be regarded as evidence to support the prosecution case. So there must be something to establish the connection between the accused’s conduct, his flight to Macau, as it were, and the offences with which he is charged.

The prosecution case is that he fled to Macau because he committed three murders and knew that the police were after him.  At item 235 he said he was told there were eight girls to be killed.  He saw an opportunity to go and took it.  At item 236 he said he was very afraid of being put in jail.  That was just after he described the three murders.  So that is a matter that you can consider when you are looking at the question of the evidence given by the accused and whether his evidence might be supportive of the prosecution case.”

106.The complaint in the written submissions is that it was inappropriate to describe the applicant as someone in flight, given the various innocent reasons he had for going to Macau, such as the presence of his girl friend there.  We do not think much of this complaint, for the judge itemised the various innocent reasons he might have had for going to Macau including wanting to be with his girlfriend.

107.It would have been better had the judge given as an example of an innocent reason the possibility, on the account which he had given in his oral testimony, that he rushed back to Hong Kong out of panic because he had let three men of apparently criminal disposition into the apartments of three women living on their own, or because he realised by the time he left Hong Kong that one or more of them had been killed.  But we note that shortly before this direction on flight, the judge gave a full direction in relation to lies and in that context told them that lies could be told out of panic; so that when the judge used the word “again” in the sentence “again the fact that an accused acts in this way is not in itself evidence of his guilt,” that is a reference back to the direction on lies and we are satisfied that in the context of this case and the directions as a whole, the directions as to flight do not constitute a misdirection or a material non-direction.

The loan shark comment

108.It was suggested by the applicant in the course of his oral testimony that the three men, whose entry to the sex workers’ premises he facilitated, were loan sharks wanting to see the women about loans owed to them.  There was however evidence that at least two of the women were materially well-off.

109.Complaint is made about the following remark in the course of the summing-up:

“Two matters that make the accounts of the loan sharks seeking audience with the sex workers about money matters rather improbable is that the first and the third victims appear to have been quite well-off and possibly not in need of the services of a loan shark.”

110.This is said to be an impermissible comment because there was no evidence how the wealth was acquired; the wealth may have been acquired from the loan sharks.

111.We do not need to deal with this in any detail.  The comment was a perfectly sensible one to make.

Conclusion

112.The single ground of appeal that has caused us concern is that touching upon the admissibility of the letter of request.  We have stated that in our judgment that the deposition ought not to have been admitted in evidence.  Its admission constitutes a wrong decision on a question of law.  However, for the reasons we have given, we are satisfied that by reason thereof no miscarriage of justice has occurred; and that it is appropriate to apply the proviso to s.83 of the Criminal Procedure Ordinance, Cap. 221.

113.Accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal but dismiss the appeal.

Mr Robert S.K. Lee, SC, DDPP and Ms Irene Fan, SPP, of the Department of Justice, for the Respondent

Mr John C. Haynes, Ms M. Mahinder Panesar and Mr Edward T.C. Chan, instructed by Messrs Jal N. Karbhari & Co. for the Applicant