HKSAR v. Chan Pak Hung

HCMA 808/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 808 OF 2010

(ON APPEAL FROM KCCC 3389/2010)

_____________

BETWEEN

_____________

Before: Deputy High Court Judge Lok in Court

Date of hearing: 8 December 2011

Date of Judgment: 3 January 2012

________________

JUDGMENT

________________

1.On 30 September 2010, the Appellant (the 2^nd Defendant in the proceedings below) was convicted after trial by Magistrate, Mr. Peter Law, of a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to ss. 25 (1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455 and s. 159A of the Crimes Ordinance, Cap. 200. On 28 October 2010, he was sentenced to 6 months’ imprisonment.

2.The Appellant now appeals against conviction. The sole ground of the appeal is that the learned Magistrate had erred in admitting the video-recorded interview (“VRI”) into evidence. The admissibility of the VRI was the only live issue before the Magistrate.  The Appellant has abandoned the appeal against sentence.

The Prosecution’s case

3.The Appellant is alleged to have conspired with a “Ah Long” to deal with a sum of US$130,000 which is known or believed to represent proceeds of an indictable offence.

4.The Appellant maintained a bank account (“BOC Account”) with the Bank of China (“BOC”).  On 23 April 2010, BOC was instructed by a Taiwanese bank to remit US$130,000 into the BOC Account.  Before the remittance was so credited, it came to a halt as BOC was alerted the sum was fraud-related.

5.The Appellant was subsequently arrested at his registered address with BOC at about 1540 hours on 26 April 2010.

6.A VRI was conducted with the Appellant between 2121 to 2136 hours on 26 April 2010.  In the VRI, the Appellant admitted, inter alia, a “Ah Long” approached him to borrow his account for bank transfer and the Appellant would give “Ah Long” the money afterwards.  The Appellant was promised some monetary reward.  It is on this basis that the prosecution alleged that there was a conspiracy to launder money between the Appellant and “Ah Long”.

7.The prosecution’s case against the Appellant, therefore, hinged on the admissibility of the VRI.  The defence challenged that the VRI was not given voluntarily on the ground that the Appellant was not informed a lawyer was coming or waiting to see him.

Evidence about the chain of events from the Appellant’s arrest until the conclusion of the VRI

8.The prosecution’s evidence came from a police officer PW2.  For the defence, the Appellant testified on the special issue together with a defence witness, a clerk of a law firm (“DW”).

9.The Appellant was arrested at around 1540 hours.  Within the time of about one hour after the Appellant’s arrest, the Appellant were able to make two phone calls, either by himself or by his girlfriend as alleged by the Appellant, to his brother to arrange a lawyer to see him at Mongkok Police Station.  Further, the Appellant was issued a “Notice to persons in custody” and the rights stated therein were explained.  The Appellant understood and signed the form.  In the period from 1745 to 1801 hours, the Appellant signed to confirm a post-recorded statement.

10.According to DW, at around 2000 hours, he received a call from the Appellant’s brother saying that the Appellant had been detained and requested a legal visit.  DW then told the police officer at the report room of Mongkok Police Station by phone that the lawyer would visit the Appellant at around 2100 hours.  He also requested the same message to be passed to the officer-in-charge of the case.

11.Then there was a dispute as to what happened between PW2 and the Appellant.  According to PW2, at around 2027 hours, he asked the Appellant when his lawyer would arrive.  By that time, the Appellant indicated that he did not need a lawyer and so PW2 brought him to the interview room to start the interview.  Prior to that, the Appellant went to the washroom.

12.The Appellant gave a different version of events. When he was asked by PW2 at around 2000 hours when his lawyer would arrive, the Appellant responded that his brother had already arranged for one but he did not know when the lawyer would come.  PW2 then told the Appellant that he would wait no more and the interview would start right the way.  The Appellant felt that there was no other option and so he did not request for a lawyer again. The Appellant felt frightened after being told that a Tsang Wing Wa (the 1^st Defendant in the proceedings below) had given a statement and answered all the questions and was bailed out.  The police demanded the Appellant to cooperate or otherwise he wouldn’t be given a good time.  The Appellant was then brought to the interview room.

13.At around 2031 hours, the Appellant was issued a “Notice to persons in custody” and the rights stated therein were explained. The Appellant indicated that he understood and signed on such document.

14.The VRI started at 2055 hours but the tape did not work properly.  At around 2100 hours, DW and counsel arrived at Mongkok Police Station meeting up with the Appellant’s brother, and they had a discussion of about 10 minutes.  At around 2110 to 2115 hours, DW told the reception at the report room the purpose of their visit.  The police officer indicated that he would inform the CID.  About 5 minutes later, they were told that the CID had been contacted.

15.The VRI formally started at 2121 hours.  At around 2130 hours, a plain-clothed officer arrived and took DW’s party to the first floor in order to arrange them to meet the Appellant.  They eventually met the Appellant.

16.According to PW2, the VRI paused at 2136 hours. PW2 left the room and came to know that the Appellant’s lawyer and his assistant had arrived.  There was then a private meeting between the Appellant and the lawyer.  At 2153 hours, the Appellant indicated that the lawyer would accompany him for the VRI which then resumed.

The Defence case

17.On the general issue, the Appellant did not testify and no defence witness was called.  The defence argued that there was no evidence to prove that the Appellant had agreed to take part in the conspiracy.

The Magistrate’s findings

18.On the special issue, the Magistrate found PW2 to be an honest and reliable witness and accepted his evidence placing full weight on it.  The Magistrate found that the Appellant was unreasonable and incredible and rejected his evidence with reasons.  He, however, accepted the evidence of DW.

19.In particular, the Magistrate was of the view that had the Appellant been coerced or otherwise persuaded to withdraw his request for lawyer, the officer was taking a great risk as it was uncertain what the Appellant would say in the interview which was video-recorded.  The Magistrate was also satisfied, on viewing the VRI himself, that the Appellant was calm and composed when he was asked about whether he needed a lawyer.

20.The Magistrate found that the Appellant’s decision to withdraw his previous request for a lawyer was made out of his own free will and he knew at the material time that the VRI would be produced in evidence.

21.The Magistrate had also considered the allegation that the police failed to suspend the VRI notwithstanding that the lawyer had already arrived at the police station.  He found that the Appellant had chosen in his free will to change his mind and withdrew the request for lawyer.  In any event, the period of time in which the lawyer had waited was reasonable and there was no malice such as intentional delay on the part of the police.

22.The Magistrate ruled that the VRI was given by the Appellant voluntarily and saw no reason to exclude it by discretion.  The VRI was therefore admitted as evidence.

23.On the general issue, the Magistrate accepted the prosecution’s evidence and expressed that he drew no adverse inference against the Appellant for choosing to remain silent.

24.The Magistrate found that the post-recorded statement and the VRI were mixed statements.  He attached full weight to the admissions and no weight to the exculpatory parts.

25.The Magistrate, therefore, found that the Appellant was asked to lend “Ah Long” his BOC Account for the intended purpose of money laundering with a 2% of the laundered sum as reward.  The Magistrate also gave reasons for his finding that the Appellant had agreed to this and the agreement constituted the conspiracy that the Appellant was charged with, and that the Appellant must have reason to believe that the money involved was proceeds of an indictable offence.

26.The Magistrate was satisfied that the prosecution had proven beyond reasonable doubt the charge in question and therefore convicted the Appellant.

Merits of the Appeal

27.The material difference between the evidence of PW2 and the Appellant is whether the latter voluntarily chose to withdraw his request for lawyer or he was coerced to do so.  This hinges on the credibility of PW2 and the Appellant.

28.It is clear that the Magistrate had thoroughly considered the facts of the case and did not err in making the relevant findings.  He accepted the evidence of PW2 to be the truth.  The Magistrate had the opportunity to observe the demeanor of the witnesses who gave evidence in court, which this court does not have, in assessing the credibility of the witnesses.  He rejected the Appellant’s evidence with detailed analysis and reasons, and there is no basis for this court to disturb the findings of fact of the Magistrate.

29.Despite such factual findings, Mr. Davies, counsel for the Appellant, submits that the VRI should have been excluded because the Appellant had not been informed that a lawyer was coming to see him or waiting to see him.  In such circumstances, the decision by the Appellant to take part in the VRI was not an informed decision and as such the consent was not given voluntarily.  Mr. Davies also relies on the decision of HKSAR v Yeung Ah Lung, unreported, CACC 506/2003 (decision of the Court of Appeal on 30 April 2004) and argues that the Magistrate should have excluded the VRI because the police had been denying the Appellant access to his lawyer.

30.I reject such argument.  In my judgment, the crux of the matter is the voluntariness on the part of the Appellant.  Upon arrest, the Appellant immediately requested to make phone call intending to seek legal assistance.  He made the same request again at the police station.  Both requests were entertained.

31.A total of two “Notice to person in custody” were issued to the Appellant.  The rights contained therein were explained and the Appellant confirmed that he understood them at the material time.  In such circumstances, the Appellant must have known that he had the right to request for lawyer’s presence in the interview.  He expressly confirmed that he did not need that in the interview.  Further, the Appellant had been waiting for his lawyer in the report room for about 4 hours since his arrest, and this clearly demonstrated that he knew about his right to have the company of his legal representative for the interview.

32.What was important was that the Appellant, with full acknowledgment and appreciation of his rights to make phone calls and contact friends and relatives and have the presence of lawyers during the interview with the police, made a voluntary decision to withdraw the request for lawyer and take part in the VRI.

33.I agree, however, if there was impropriety on the part of the police in denying the Appellant access to his lawyer, it may be a relevant factor for the court to decide whether to exercise the discretion to exclude the VRI.  But there was no such impropriety in the present case.

34.According to the evidence, once the police officer in the report room was informed of the presence of DW and counsel, DW was told in just 5 minutes that the CID was contacted.  On the evidence of DW which the Magistrate accepted, it was within 15 minutes thereafter that an officer approached DW’s party and brought them to the first floor and arranged to meet with the Appellant.  Further, PW2 immediately suspended the recording of the VRI upon someone knocking on the door.  The Appellant was then informed that his lawyer had arrived and was asked right the way whether he needed to see a lawyer.  The Appellant said yes.

35.For some reasons, the message that the lawyer would arrive at 2100 hours was not passed to PW2.  However, I accept that this was no more than a miscommunication on the part of the police.  If the police officers were deliberately trying to obtain a confession from the Appellant in the absence of lawyer, PW2 should have rushed the Appellant to conclude the interview as soon as possible as the lawyer would be arriving fairly soon.  Yet the evidence suggested the contrary.  The Appellant was allowed to go the washroom before the VRI, and the Appellant, according to the Magistrate, appeared calm and composed when he was asked about whether he needed a lawyer. Hence, I agree with the analysis of the Magistrate that there was nothing to suggest that the police officers were intentionally trying to deny or delay the lawyer to gain access to the Appellant.

36.For myself, I also doubt whether it was advisable for the police officers to pass any kind of unverified information to the Appellant.  Assuming the police officers did pass the information about the intended legal visit and for some reasons, the lawyer did not come to the police station or came only after a long delay, then the Appellant could complain that the police had created a false expectation that the lawyer would arrive at the scheduled time, and if no lawyer was available at that time, that might amount to undue pressure on the Appellant to make a statement.  In my judgment, so long as the Appellant was fully aware of his right to make contact with his friends or family members to make enquiry about the availability of lawyer, there was no impropriety on the part of the police.

37.In taking the VRI, there is no suggestion that the police was in breach of the Rules and Directions issued by the Secretary for Security.  Furthermore, unlike the facts in Yeung Ah Lung, supra., there is no evidence in the present case to show that the police officers had deliberately denied the Appellant access to his lawyer.  Taking into account the approach for the exercise of the residual discretion as laid down by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431, the Magistrate was certainly right not to have exercised the residual discretion and the VRI was properly admitted as evidence as part of the prosecution case.

38.Based on the admission of the Appellant in the VRI, irresistible inference could be drawn that he had conspired with “Ah Long” to launder money.  There is nothing which renders the conviction unsafe or unsatisfactory, and there was also no material or any irregularity in the conduct of the trial.  Hence, there is no merit in the Appellant’s appeal against conviction and the same is therefore dismissed.

Mr. Oliver Davies, instructed by Messrs. Raymond T.Y. Chan, Victoria Chan & Co., for the Appellant

Ms. Hermina Ng, Acting Senior Public Prosecutor, for the Respondent