HKSAR v. TANG WAI LEUNG

HCCC 50/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 50 OF 2014

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REASONS FOR RULING ON OBJECTION NO.2

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1.  I gave my ruling earlier today dismissing the application and said that I would provide my reasons for it later in the day which I now do. This application first arose during the voir dire hearing on the special issue as to the admissibility of the video recorded interview of the defendant on 24 August 2013 (exhibits PP 22, 22A and 22B). That hearing, as stated in the written grounds of objection, concerned allegations of threats and promises claimed to have been made by the police to the defendant after he was arrested for trafficking in dangerous drugs.

2.  It was when Sgt 49089 (VDPW 3) was being cross-examined that Mr Richard Donald, for the defendant, asked questions about his initial dealings with the defendant and whether he had been arrested prior to the police having entered the flat where his room was located.  He confirmed in cross-examination that the defendant voluntarily took them to his room where he was going to get a passport to establish his identity and that he had committed an offence for not producing an identity card which he claimed he lost.  It was put to the sergeant that the defendant was entitled to close the door of his home and therefore prevent them from entering the flat.  The sergeant explained that the defendant had already committed an offence by not producing proof of identity.  He was asked why he had not arrested the defendant beforehand but the sergeant responded that the defendant had given an explanation which he invited them to follow up.  

3.  I queried the relevance of these questions on the special issue with Mr Donald who said he was examining the sergeant as to whether a lawful arrest had taken place.  In discussion, it emerged that Mr Donald was raising a new ground of objection on the issue as to whether a lawful arrest had taken place prior to the police entering the flat but it was unclear as to the significance of this to the case, although it was suggested that entry into the flat was unlawful.  It was not a matter that had been previously mentioned, either at the pre‑trial review on 4 September 2014 or at the commencement of the trial on 29 October 2014.  Mr Donald was given overnight to consider the point and whether he wished to pursue it, and if so, to state the clear grounds for it[1].

4.  In order to understand the objection raised by Mr Donald it is necessary to briefly examine the facts of the case as contained in the papers.  Mr Donald acknowledged that he would proceed with the application without the calling of evidence on this special issue and the parties would rely on the statements of the police officers.

5.  At about 10:07 pm on 23 August 2013, PC 33739(VDPW1), who was in plainclothes, was carrying out patrol duties in Canton Road near Soy Street together with two other police officers who were in uniform, Sgt 49089 and PC 8991.  He noticed a taxi travel past Soy Street and stop at the left of the roadside.  There was a passenger inside the taxi but he did not get out.  He observed a male who was later identified as the defendant approach the taxi.  The left rear door of the taxi opened and the defendant walked to the left rear of the taxi and bent over into the compartment where the door was opened.  From the evidence, it would seem that he was engaging the passenger sitting in the rear of the taxi.  The police officer observed that after a short while, he lent out of the taxi and shut the door.  The taxi then left.  He observed the defendant then go into Kwong Hing Building.  He followed him and saw him standing at the lobby waiting for a lift.  He revealed his identity and asked him to go to come out to the pavement outside the building for enquiries.  By then Sgt 49089 and PC 8991 were outside the building.  He showed him his police warrant card and asked him why he was at that location.  The defendant said that earlier on his friend who was in a taxi came to the location to pay him back $500.  He said he lived on the third floor of the building.  He observed that the defendant looked flurried and hesitated in his speech.  He told him that it was suspected that he was in possession of dangerous drugs and that he would search him.  While checking the contents of his wallet he found a piece of white paper with several lines of numbers written on it.  He asked him what the numbers meant but the defendant did not explain.  He found no other suspicious items on him.  He then asked the defendant to provide his identity card.  The defendant said his identity card was lost but he had a passport that was at his home upstairs on the third floor.  He said he would go with them to check his identity.  At about 10:10pm, PC 33739, together with Sgt 49089 and PC 8991 accompanied the defendant into the building and took a lift to the third floor.  The defendant brought them to the outside of his residence.  He took out a key for the metal gate which was closed.  PC 33739 noticed there was no wooden door behind the metal gate and he could see inside the unit and observed that there were a lot of miscellaneous items and two rooms at the end of the unit.  The defendant unlocked the metal gate and pulled it to the left side to open it.  He then suddenly rushed inside and turned around facing the police officers and pulled the metal gate towards him in an attempt to shut it. They held onto the gate to prevent him from shutting it and warned him not to pull on the gate.  He ignored them.  The police were able to pull the gate open and the defendant, who was still holding onto it, fell forward into the corridor.  He was asked why he tried to shut the gate but he did not answer and started to wave his hands.  PC 33739 and another police officer subdued him but they fell onto the floor with the defendant continuing to struggle.  They warned him that they were going to handcuff him to subdue him but he continued to struggle.  They handcuffed him and it was about a minute later that he finally stopped struggling.  PC 33739 saw a woman inside the kitchen at the entrance of the unit who identified herself as the owner and she stated that the defendant was a tenant who rented the room on the left side.  The defendant said that his passport was inside his room and then he went inside with the police to find it.  He told them that his passport was put on the wall mounted shelf and was inside the mooncake box.  PC 33739 opened the box and found a British National (Overseas) passport (BNO).  After checking the information in the passport and confirming it with the defendant, he observed items in the room that when search led to the discovery of a quantity of dangerous drugs.  He was then arrested and cautioned for trafficking in dangerous drugs.

6.  Evidence had been given by Mme Chow Chui‑yuk (VDPW4), that she was the landlady of the flat and rented the room to the left to the defendant.

7.  PC 8991(VDPW2) stated that when PC 33739 was talking to the defendant he looked anxious.  He confirmed that when he was searched a piece of paper with numbers written on it was found in his wallet but he refused to give any explanation about it when asked.  He said he was unable to produce his identity card and said he had lost it but that he had a passport at his home.  He said he was willing to take them to his home to get the passport to prove his identity.  The defendant led them outside the flat on the third floor and upon opening the metal gate rushed in and tried to forcefully shut it.  They grabbed the gate and warned him not to pull on it.  They pulled open the gate and he came forward as a result.  He struggled hard, throwing his arms and legs in the air.  They were able to subdue him onto the ground outside the flat but he continued to resist vigorously.  He was eventually handcuffed.  PC 33739 entered the flat and made enquiries of the landlady, while he and Sgt 49089 made enquiries of the defendant.  The defendant said that his passport was inside his room.  There was a lot of stuff inside the flat and there were two rooms at the far end of it.  They took the defendant into the flat to get his passport for inspection.  The defendant told PC 33739 that his passport was placed on a rack shelf on a yellow desk.  PC 33739 then took out a passport from the room and checked it with the defendant.

8.  Sgt 49089 (VDPW3) stated that when PC 33739 requested the defendant to show his identity card he said he had lost it but that a passport was kept at his home on the third floor of the building.  The defendant was willing to bring them to his home to check his identity.  He stated that as the defendant did not possess any identity document with him they therefore brought him to his home to confirm his identity.  He reported the action to be taken through the beat radio.  The defendant led them to the third floor and brought them outside the metal gate of the flat.  The defendant opened the metal gate and after doing so dashed inside and tried to close it.  The other police officers grabbed the gate to prevent him from doing so, while the defendant was wrestling with them.  Eventually, they pulled open the gate and the defendant came forward but he continued to struggle.  He was eventually subdued on the ground.  He kept struggling and fighting and he was warned that they would use handcuffs to subdue him.  He kept moving his hands and kicking his feet and tried hard to struggle.  PC 33739 entered the flat and spoke to the landlady who confirmed that he defendant rented the room on the left.  PC 33739 asked the defendant where his passport was and he indicated in the room.  PC 33739 found the passport but also observed other items suspected to be dangerous drugs.

9.  It was not in issue by the defendant what had taken place between him and the police about his identity card.  He was asked to produce his identity card but could not do so and explained to the police that he lost it.  He then told the police that he had a BNO passport in his room and voluntarily invited them to come to his room to inspect his passport in order to prove his identity.

10.  Turning back to the application, it was the next day on 30 October 2014, that Mr Donald submitted written grounds of Objection No. 2.[2] He acknowledged that this ground of objection was a new point altogether and had nothing to do with the admissibility of the record of interview.  It stated that the defendant had never been told, nor had it been made clear, what the defendant had been arrested for.  It also stated that the defendant had simply been told he had been arrested.  At this stage, Mr Donald in the first version of Objection No. 2 stated that section 17C of the Immigration Ordinance, Cap 115, made it an offence for not carrying or producing proof of identity which he said was not an arrestable offence under section 50(1)(a) of the Police Force Ordinance, Cap 232.  He submitted that the defendant in going to his home to retrieve his passport was under no obligation to grant or allow access to the police into his home.  The police would have been trespassers.  It was acknowledged by Mr Donald that had the defendant been arrested it would have been different. But he argued that he was not under arrest and that by agreement his actions were voluntary.  He argued that the defendant was entitled to enter his own home, retrieve his passport and present it to the police, if he wanted.  He relied on Article 29 of the Basic Law.  Article 29 provides that the homes and other premises of Hong Kong residents shall be inviolable and that arbitrary or unlawful search of, or intrusion into a residence or other premises shall be prohibited.  This was not an arbitrary or unlawful search of or intrusion into the defendant's home.  He argued that the police had no right to enter the defendant's home in that they did not suspect him of committing any offence as he had been searched and nothing incriminating or suspicious had been found in his possession.

11.  Mr Donald submitted three versions of the written grounds of objection on this issue which I will briefly note as the argument seem to be based on a different premise each time.

12.  Version 1.  The police after the struggle with the defendant arrested and handcuffed him.  They did not make it clear on what basis the defendant was arrested and simply told him he had been arrested.  Section 17C was not an arrestable offence.  The police in arresting the defendant for something unknown had acted unlawfully.  The police search of the flat was unlawful and the finding of the dangerous drugs in the flat should therefore be ruled inadmissible.  It was an arbitrary and/or unlawful entry and seizure.

13.  Version 2.[3]  Sgt 49089 when giving evidence (in the voir dire hearing on the admissibility of the video recorded interview) stated that the defendant had been arrested after he had been subdued and handcuffed.  It had never been made clear to the defendant what he had been arrested for and he was never told.  It was acknowledged that Section 17D provided the power of arrest for an offence under Section 17C.  Otherwise Version 2 was the same as Version 1. Mr Donald explained that if the arrest was lawful then that was the end of the matter.  However, the evidence appeared to indicate that the police did not formally arrest the defendant at the time but sought to subdue him.  The evidence of the sergeant was replayed for the purpose of clarifying his evidence. 

14.  Version 3.  This version came about at my direction that the application be particularised together with a statement of grounds and relevant authority.  The police had not formally or legally arrested the defendant even though they could have and had the power to do so.  It was argued that when they subdued and handcuffed the defendant, they did not arrest him and this action was unlawful and illegal, and therefore the consequential police search of the flat was unlawful and the finding of the dangerous drugs in the flat should be ruled inadmissible.[4]  It was confirmed by Mr Donald when addressing this application that there was no need to call any evidence and for the purpose of considering the application the parties would rely on the statements.[5]

15.  In the end, it was argued that the police did not have any power to simply subdue somebody.  This of course depends upon the circumstances and it would appear that at the time the defendant was struggling with the police and obstructing them in the lawful execution of their duty.  The defendant had committed an arrestable offence as provided under section 17D and on his own volition he set in train an inquiry by the police to establish his identity by producing a BNO passport.  It was argued that the defendant was assisting the police with their inquiries in a voluntary capacity.  The point is that the defendant volunteered to the police that he had a BNO passport which would prove his identity and that it was in his flat.  He took the police to his flat for this purpose and they were carrying out a lawful and proper inquiry at the initiative of the defendant.  It was argued that the defendant was free at any time to leave whether the police had finished questioning him or not and that the police had no right to detain him unless they had formally arrested him.  When entering the flat the defendant had become agitated and was fighting with the police.   The police were carrying out their lawful duty in that they were making an inquiry that had been initiated by the defendant and it would appear it was on his invitation that they go to his flat to retrieve the BNO passport.  It was argued that the police had made it clear that they had not arrested the defendant and had only subdued him.  It was submitted that this was illegal as the police had no power to simply subdue a member of the public and even less so in a person's private home.  This ignores the facts and circumstances that led the police to attend the defendant’s flat on his initiative and in order to carry out a lawful inquiry as to his identity.

16.  It was acknowledged by Mr Donald in his written grounds of objection that section 17D provided the police with the power of arrest of the defendant for not carrying and producing proof of identity.  He submitted as follows: “Sensibly, being in the building where the defendant stated he lived, the police were simply carrying out enquiries; determining that the defendant actually lived at the address and did have a passport proving his identity.  They had deliberately made the decision not to arrest the defendant.”  He went on to argue that the defendant in going into his home to retrieve his passport was under no obligation or duty to grant or allow access to the police into his home and that had he actually been formally or legally arrested it would have been different.  What Mr Donald seems to be arguing is that the police behaved sensibly by not taking arrest action when they could have because they were making an inquiry at the initiative and invitation of the defendant and having not formally arrested the defendant they acted illegally in their subsequent actions.  He argued that the defendant was entitled to enter his home, retrieve his passport and present it to the police.  He relied on Article 29 of the Basic Law.  He also relied on Article 14 of the Bill of Rights which includes the right to be secure against intrusion of one's property.  He referred to R v Yu Yem-kim(1994) 4 HKPLR 75 but as provided in that case at paragraph 95, all interferences by the authorities of an individual must be justified by reasonable necessity and must be kept to a minimum.  Given that Mr Donald has acknowledged that the police behaved sensibly and the circumstances of the case, it would appear that the actions of the police in this case were both justified by reasonable necessity and kept to a minimum.

17.  Mr Duncan Percy, for the prosecution, argued that by virtue of section 54(1) of the Police Force Ordinance (Cap 232), PC33739 had the power to stop, detain and search the defendant. He had similar power under section 54(2), if he suspected the defendant of having committed any offences.  He made the point that the power to stop and detain a person for a reasonable period of time for enquiries, also included requiring that person to produce his proof of identity. He submitted that it could be reasonably inferred from the evidence, that the defendant’s action at the metal gate was a deliberate attempt to stop the police from entering the unit and to frustrate their duty to investigate his identity.  He also submitted that the police had power of arrest in the circumstances of this case under section 17D.  He argued that if the defendant’s actions at the metal gate were consistent with his attempt to frustrate their legitimate enquires or evade arrest, then the police were entitled to restrain and handcuff him as they did.  He further submitted that by virtue of section 50 of the Police Force Ordinance, a police officer had the power to apprehend any person who he reasonably believe will be charged with any offence and that that person may also be apprehended if he forcibly resist or attempts to evade the arrest.  He noted that section 54 also provided the police with power to lawfully enter premises by force if necessary, and search therein, if that person fails to respond to the police demands to be allowed entry under section 50(3). 

18.  Mr Percy submitted that the evidence suggested that the police, by handcuffing the defendant, were not exercising their power of arrest under the Immigration Ordinance, but were simply detaining him for the purpose of continuing with their enquiry under section 54(1)(b) of the Police Force Ordinance.  It was lawful in those circumstances to put him in handcuffs before proceeding to enter the unit.  He went on to explain that the defendant once subdued, led the police into his room to find his BNO passport and that the conduct of the defendant indicated implied consent, if not express consent, to allow the police to enter the unit and to continue with their enquires to establish his identity. 

19.  The prosecution put their case in reply on two bases:

(i) there was no formal arrest outside the flat;

(ii) (a) if there was an arrest outside the flat, the arrest and the room search would have been lawful; or alternatively,

    (b) if there was an unlawful arrest outside the flat and the room search was unlawful, there would be no absolute bar to evidence obtained in breach of defendant’s fundamental human rights: HKSAR v Chan Kau Tai [2006]1HKLRD 400 and HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232 . 

20.  I find that the police carried out a lawful arrest prior to entering the flat when they subdued the defendant.  As stated by the police, he had committed an offence under section 17C and they were making enquiry at his initiative when he sought to obstruct them in the lawful execution of their duty.  By the physical actions that they took, they were placing the defendant under arrest in relation to an offence under section 17C and for obstructing a police officer in the lawful execution of their duty.  See section 10 and section 63 of the Police Force Ordinance and section 36 (b) and Offences against the Person Ordinance, Cap 212. See also Yeung May Wan & Ors v HKSAR (2005) 8 HKCFAR 137.

21.  If I am wrong on this matter and there was no lawful arrest action, I am of the view that police were carrying out their lawful duty in making this enquiry and on the voluntary invitation of the defendant.  In any event, given the facts and circumstances of the case and the issue under consideration, then I would not exercise my discretion to exclude the evidence. 

22.  In HKSAR Chan Kau Tai, the Court of Appeal held that the court had a discretion to exclude as well as admit evidence and the objective of the exercise of the discretion was to ensure a fair trial of the accused took place.  The Court further held that the effect of fundamental rights and freedoms on the discretion required:

(a) First account must be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR.

(b) Second, any breach would not automatically result in the exclusion of evidence obtained in consequence of the breach: the court still retained the discretion.  In considering fairness, the court must take a broad view of the overall circumstances.  It must not just look at procedural fairness of the trial.  It was also entitled to look at the behaviour of the investigating authority.  In this regard, there could be situations in which it would be such an affront to the public conscience or the integrity of the criminal justice system was so compromised that the court must step in and put a stop to it.  So while there was no discretion to refuse to admit relevant admissible evidence on the ground that it had been obtained by improper or unfair means, the court could exclude evidence obtained by unfair means in circumstances where admission would have an adverse effect on the fairness of the proceedings.

(c) Third, the discretion involved a balancing exercise involving two competing interests, both facets of the public interest, on the one hand, protecting constitutionally guaranteed rights; and on the other, ensuring detection of crime and bringing criminals to justice. Breach of constitutional rights was an important factor whose weight would depend mainly on the nature of the right involved and the extent of the breach.  So where the gravity of a breach was small but the crime a serious one, the public interest leaned towards the latter, with the result that evidence obtained as result of the breach would be admitted.  Also, when conducting the balancing exercise, the court must also have regard to the fact that some crimes were by their very nature surreptitious, not easily detected, and authorities were driven to resort to covert investigative techniques.

23.  In Muhammad Riaz Khan, the Court of Final Appeal held that there was under the law no absolute bar to the reception of evidence obtained in breach of a defendant’s constitutional rights and that it was a matter of discretion.  The Court further held that evidence obtained in breach of a defendant’s constitutional rights could nevertheless be received if, upon a careful examination of the circumstances, its reception: (a) was conducive to a fair trial; (b) was reconcilable with the respect due to the right or rights concerned; and (c) appeared unlikely to encourage any future breaches of that, those or other rights.  The risk assessment called for under the third element would always be made by the courts, vigilantly, in the light of their up-to-date experience.  Under this test, the discretion concerned was rational and proportionate.  The factors to be taken into account in applying this test and the weight to be accorded to each would depend on the circumstances of each case.

24.  For the foregoing reasons, I refuse to exclude the evidence of the seizure of the drugs from the defendant’s room.  If there had been a breach of the defendant’s constitutional right it is in relation to the search and seizure by the police upon an alleged unlawful entry into his home.  The circumstances that led the police to enter his home have been fully canvassed above and in my view, as acknowledged by Mr Donald for the defendant, the police had sensibly sought to make enquiry as suggested by the defendant in relation to his proof of identity by going to his home to inspect his BNO passport. 

25.  The issue that I have to address is whether the reception of the evidence (being the seizure of the drugs) in the circumstances is (a) conducive to a fair trial; (b) reconcilable with the respect due to the right concerned; and (c) appears unlikely to encourage any future breaches of that or other rights.  This was not an arbitrary or unlawful search into the defendant's home or an intrusion into his room.  The defendant had committed an offence under section 17C and he told the police that he had lost his identity card.  It was the defendant who told the police that he had a BNO passport and that it was located in his room in the building where he had been stopped.  There is no dispute that he voluntarily told the police to go to his home to inspect the passport.  The fact that the police asked the defendant to locate and produce his passport, even after the scuffle, evidences that the police were following up the question of his proof of identity.  The defendant’s conduct in attempting to close the door on the police and prevent them from entering would have heightened their suspicion about his identity.  The police account is also confirmed by the fact that the defendant did have a BNO passport which he produced to them.  I do not see in the circumstances of this case and the issues to be tried that the evidence in relation to be finding and seizure of the drugs is not conducive to the defendant’s fair trial.  The police did show due respect for the defendant's right for they acted on the initiative and invitation of the defendant to go to his home to inspect his passport.  As Mr Donald puts it, if the police had arrested the defendant as they had the power to do so under section 17D or later when he was subdued that would be the end of the matter.  However, as noted by the police the defendant had committed an offence and they were making enquiry as requested by him.  I do not consider there has been a serious breach of the defendant’s right in the circumstances of this case.  The police officers behaved sensibly and it is not being suggested otherwise.  This is a serious case involving an allegation of trafficking in dangerous drugs.  I do not consider, given the particular circumstances of this case that the reception of the evidence would run the risk of future breaches of this right or any other rights.

26.  Accordingly, I dismiss the defendant’s application and refuse to exercise my discretion to exclude the evidence as submitted.

[1] At 3.26 to 3.42 pm, 29 October 2014

[2] At 10.02 to 10.23am, 30 October 2014

[3] Version 1 was replaced by Version 2 at 3.31 to 3.42pm and 4.11 to 4.47pm, 30 October 2014. Version 1 was left on the court file.

[4] At 2.32 to 2.46pm, 31 October 2014

[5] At 2.33 to 2.35pm, 31 October 2014