HKSAR v. LAM HOI KIT

HCCC 84/2022

[2023] HKCFI 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2022

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REASONS FOR RULING

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1.  Prior to the empaneling of the jury, a voir dire was held to determine the admissibility of various statements allegedly made by the defendant confessing his guilt. At the conclusion of the voir dire, I ruled that some of his statements were admissible in evidence while others were not. In accordance with the usual practice, I did not give my reasons for my ruling at that stage, but I said that I would hand down brief reasons for my ruling at the end of the trial. That I now do.

2.  The defendant faced a single charge of trafficking in dangerous drugs. Two local women were arrested at Hong Kong International Airport on suspicion that they were bringing dangerous drugs into Hong Kong. A large quantity of cocaine was found in the rucksack which one of them had. The defendant, who was arrested in his home a few months later, was alleged to have recruited the women to bring this consignment of cocaine into Hong Kong and to have made their travel arrangements for them. The two women pleaded guilty to trafficking in dangerous drugs by trying to import this cocaine. The defendant pleaded not guilty, and the prosecution proposed to call the women to give evidence in the defendant’s trial. They had both made witness statements implicating him.

3.  The prosecution’s case was that on being arrested, the defendant was told that he was believed to have conspired with the two women who were named to bring six packs of dangerous drugs from Dubai via Brazil into Hong Kong. On then being cautioned by the officer who arrested him, the defendant was alleged to said:

“Ah sir, it was me who instructed the two chicks to go over there and bring dangerous drugs back into Hong Kong. Give me a chance.”

4.  The arresting officer, DPC Ng, made a note of that in his notebook and the defendant signed it as correct. Later that day the defendant was interviewed. The interview was video-recorded. I watched a recording of that interview. In it the defendant confessed in considerable detail to his role in recruiting the two women to bring the cocaine into Hong Kong and in making their travel arrangements.

5.  The defendant challenged (a) the admissibility of what he is alleged to have said when he was arrested, (b) the admissibility of the note in DPC Ng’s notebook which purported to record what the defendant was alleged to have said and which he was alleged to have signed as correct, and (c) the admissibility of the video-recording of the interview, and the transcription of it, at which he apparently confessed. His case was that he had never said what he was attributed to have said when he was arrested, that he had not been cautioned until the later interview, and that he had only signed DPC Ng’s notebook, after being slapped in the face, and being told, among other things,

(a)  that some money which the police had found in his flat would be seized, despite being told that the money represented his wife’s savings to pay for an operation she was about to have,

(b)  that he and his wife would be held for questioning,

(c)  that since they were unlikely to be granted bail, their son would go to the Po Leung Kuk, and

(d)  that if he co-operated they would leave his wife and son alone.

6.  The defendant did not deny that in the video-recorded interview he had apparently confessed to his involvement in this scheme to bring cocaine into Hong Kong, but he claimed that prior to the interview, among other things:

(a)  he had been told that he would be informed what to say when he was interviewed, and that if he did not co-operate, further arrests would be made (which he thought was a reference at least to his wife),

(b)  he had been told that if he had refused to co-operate “some things” would have been planted on him (which he assumed would have been dangerous drugs), and he would have been in “bigger trouble”,

(c)  he had been asked whether he had been to bed with one of the women,

(d)  he had been told that if he did not admit what he had done, he would lose the one-third discount in his sentence to which he would otherwise have been entitled,

(e)  he had been told that the two women had already accused him of instructing them what to do,

(f)  he had been told that if he co-operated, the police would help him get a lighter sentence, but that if he did not, he would lose the one-third discount for pleading guilty, and

(g)  he had then been “coached” in what he should say.

7.  I deal first with what the defendant was alleged to have said when he was arrested. I was concerned about some of the evidence of DPC Ng and of another of the officers who gave evidence, DSPC Yip. For example, I was sceptical of DPC Ng’s claim that he had not known prior to the defendant’s arrest that the drugs consisted of cocaine. I was sceptical of his original claim that he had not known the weight of the cocaine until the day when he began to give evidence, though towards the end of his evidence he acknowledged that he had been wrong about that. And I was particularly sceptical about the circumstances in which the defendant was said to have signed as correct the record which DPC Ng had made in his notebook about what the defendant was alleged to have said at the time of his arrest. According to DPC Ng, he would have spent 45 minutes making the entry in his notebook at a time when the five other officers in the team which had gone to the defendant’s flat were doing nothing in particular.

8.  Moreover, the words which DPC Ng attributed to the defendant were significant: “Ah sir … give me a chance.” In the bad old days when police officers were invariably accused of “verballing” a suspect, these were the words commonly used. They were the paradigm example of the sort of words made up by police officers and used to incriminate a defendant falsely. “Ah sir, give me a chance” has passed into the folklore. If you want to make a joke about the language used when a confession is falsely attributed to a suspect, “Ah sir, give me a chance” is the first thing which comes to mind. It is the equivalent of “It’s a fair cop” in England. I did not believe that the defendant said that, and in the circumstances I could not be sure that the defendant said the other words attributed to him, namely “it was me who instructed the two chicks to go over there and bring dangerous drugs back into Hong Kong”.

9.  Having said that, whether the defendant had said the words attributed to him was a matter for the jury. I could not exclude them simply because I was not sure that he had said them. I could only exclude them if, on the assumption that he had said them, his confession had been involuntary in the sense that it had been extorted or obtained by threats or promises of the kind alleged by the defendant.

10.  Leaving aside the language in which the defendant’s apparent confession was couched, I did not think that the defendant was likely to have confessed to his involvement in this importation of drugs as early as he was alleged to have done without some pressure having been applied. I was very sceptical that he would have put his hands up just like that as quickly as the police say he did. Something had to have been said or done to have made him do that. I was very far from saying that everything which the defendant claimed that the police had said to him in his flat had been said, but I could not exclude the possibility that something improper had been said to him which had made him confess to the offence when otherwise he would not have done so at that stage. In short, I was not sure that, on the assumption that he had said what the police had attributed to him, his confession – as well as his subsequent confirmation of it by signing DPC Ng’s notebook as correct – had not been obtained by improper pressure of some kind. I therefore ruled that what he was alleged to have said when he was arrested – and his signing of DPC Ng’s notebook – could not be given in evidence.

11.  I turn to the video-recorded interview. It began about 5 hours after he had been arrested and about two and a half hours after he arrived at the police station. It was conducted by DPC Ng. It lasted about one and a quarter hours. There was no-one present apart from DPC Ng and the defendant, the defendant having declined the services of a lawyer at the beginning of the interview. In legal theory, I was not concerned with whether the defendant had given his own version of events, or whether what he had said had been what he had been told to say. That would have been a matter for the jury in the event of the interview being admissible. The issue at that stage was whether he had been induced to say what he said as a result of threats or promises of the kind alleged by him. But since why he had said what he said was so bound up with the issue of whether he had been induced to say what he did as a result of improper pressure, it would have been completely artificial to address the latter without addressing the former.

12.  The defendant was asked a great many questions during the interview covering a wide variety of topics. Many of them related to details – such as whose mobiles had particular numbers – and some of the topics on which he gave answers were topics which the police were unlikely to know the answers themselves. Indeed, DPC Ng was making a note of the answers the defendant gave as if he did not know what the defendant was going to say. In short, it was, in my view, inconceivable that the defendant had been told what to say. He was giving a version of events which he was prepared to give, not one which he had been told to give. His answers were far too detailed and covered far too many topics for any other conclusion to be reached. I was sure that DPC Ng and DSPC Yip were telling the truth when they denied that the defendant had been “coached” about what to say. I say that even though I disbelieved DSPC Yip’s account of how he had come to refer to the cocaine having weighed 2,825 gms in the notes he had prepared for DPC Ng to use in the interview. His evidence was that he had weighed one of the 6 packs of cocaine and had arrived at the overall weight of 2,825 gms by multiplying that number by 6. It was plain from other evidence that all 6 packs had been weighed, and that the figure of 2,825 gms had been arrived at by adding up the weight of each of the packs.

13.  The version of events which the defendant was prepared to give amounted to a complete confession to recruiting the two women to bring drugs into Hong Kong and to making their travel arrangements for them. Could he have been induced to confess to that by improper pressure of some kind? The defendant was wearing a mask throughout the interview, and that prevented me from seeing his face fully, but I observed his body language carefully. He appeared to me to answer the questions he was asked voluntarily. I discerned no reluctance whatever to answer any of those questions. There were even times when he provided words which DPC Ng was struggling to find (for example, question and answer 67 and 68), and when he volunteered answers to questions which he thought were coming (for example, answer 448).

14.  Nor did I find it particularly surprising that he would have chosen to confess. Much water had flowed under the bridge since his arrest. He would have known, of course, that the two couriers had been arrested some months earlier, and the cocaine seized. He would have realized that if they had told the police who had recruited them, the police would be after him. He may not have confessed immediately on his arrest to his involvement in the importation of the drugs found in the rucksack, but by the time he got to the police station he would have realized that the game was up. I was sure that he had decided that there was no point in holding out. In other words, he did not confess because of any improper pressure to which he was subjected.

15.  I was fortified in this view by the fact that the two women had each made statements shortly after their arrest implicating the defendant and stating that they wished to be prosecution witnesses. Although both DPC Ng and DSPC Yip denied that the defendant had been told that the women had made statements implicating him and had agreed to be prosecution witnesses, I thought it very likely that the defendant would have been told that. Indeed, the defendant said at the end of his evidence that they had told him that. DPC Ng would have wanted the defendant to confess, and he would have thought that the defendant would be more likely to do so if he knew that the two women had made statements implicating him and saying that they were prepared to give evidence against him. Once the defendant knew that the two women had done that, that would have made him all the more likely to confess.

16.  For these reasons, I rejected the claim that the defendant was induced by improper pressure of any kind to confess his guilt in the interview. I was sure that he confessed voluntarily because he realized that the chance of avoiding being convicted were negligible. Although I permitted the prosecution to put the defendant’s previous convictions to him in view of the attack on DPC Ng implicit in his evidence, I did not in the end regard his previous convictions as helping, one way or the other, on any of the issues I had to decide. These, then, were in brief my reasons for ruling that the recording of the interview could be played in evidence, and the jury could be provided with an agreed transcription of it.