HKSAR v. LEE SIN SAU

HCMA127/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 127 OF 2009

(ON APPEAL FROM ESCC 2944 OF 2003)

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J U D G M E N T

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1. The appellant Lee Sin Sau was charged, by way of summons, with an offence of “Publishing an obscene article”, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance (Cap.390). 

2. The particulars are as follows :

“Information has been laid that you, LEE Sin Sau together with New Media Group Ltd., MONG Hon Ming, WONG Kim Man, and Dai Nippon Printing Co. (H.K.) Ltd, on or about 30 October 2002 in Hong Kong, published an obscene article, namely, feature article entitled ‘娛圈悲劇字母女星被虐裸照曝光’ published on the front cover of a magazine entitled ‘EASTWEEK dated 2002年10月30日Volume 521’ contrary to Section 21(1)(a) Control of Obscene and Indecent Articles Ordinance, Cap.390.”

3. The case against the appellant was heard together with a similar summons against the said Wong Kim Man named in the particulars.  As the learned magistrate referred to the appellant as (“D2”) and Wong as (“D1”), I will adopt the same terminology to avoid confusion.

4. Both D1 and D2 pleaded not guilty to the respective summons they faced.  D1 changed his plea on the 3^rd day and was duly convicted of the offence charged.  D2’s trial continued and the magistrate convicted her at the end of the trial, sentencing her to 200 hours of Community Service Order.

5. D2 now appeals against conviction.

Prosecution case

6. As summarised by the magistrate, this case concerned the publication of a featured article (as well as the front cover) in an issue of the former Eastweek Magazine.  The article was about the authenticity of a semi-nude photograph of a female, who bears much resemblance to a well-known local movie actress.

7. Much of the prosecution case (including the obscenity of the subject article and front cover) was agreed by parties and was reduced into a set of Admitted Facts (Exhibit P5).  As far as D2 was concerned, the only evidence incriminating her came from her Record of Interview (Exhibit P8), in which she described and explained the role she played in the publication of the said article.

Issue involved at trial

8. The only live issue before the magistrate was the admissibility of P8.  The magistrate adopted the alternative procedure and D2 gave evidence after the prosecution finished calling all witnesses.  D2 did not give evidence on the general issue after the magistrate ruled P8 admissible.  She was duly convicted after the magistrate attached full weight to her answers.

Grounds of appeal

9. Mr Phillip Wong, who did not represent D2 before the magistrate, advanced some 8 grounds of appeal.  I do not think it necessary to reproduce them in detail here.  Basically these grounds boil down to two : (a) the magistrate erred in admitting P8 into evidence; and (b) the contents of the answers in P8 were such that they did not allow the magistrate to draw the only irresistible inference of guilt.

10. As a number of complaints raised by Mr Wong echoed those raised by defence counsel (Mr Raymond Yu) during the trial, it is convenient to set out the grounds of objection and the evidence before the magistrate.

Grounds of objection re admissibility

11. The objection was two-fold : firstly, the defence alleged that D2 was forced to attend the police station against her will when she was not aware of her rights; and secondly, inducement and oppression were exercised by the police officer in question (PW2) on D2, rendering the admission involuntary.

Evidence of D2

12. In relation to the first ground, D2’s evidence was that on 10 March 2003, someone claiming to be “Lam Sir” of “O Kei” (i.e. the Organized Crime and Triad Bureau Unit of the police) (“OCTB”) called her at home and told her that she had to go to the police station to give a statement.  As D2 was then heavily pregnant and due to give birth soon (she in fact gave birth four days later), she declined to go as she was feeling unwell.  That police officer told her that if she did not attend, the police would go to arrest her at home.  D2 thus reluctantly went to the Tai Po Police Station as arranged, accompanied by D1.  D2 was then living with D1, who was D2’s common law husband and the father of D2’s soon-to-be-born child.

13. In relation to the second ground, D2’s evidence was that after she told PW2 under caution that she had nothing to say, PW2 did not accept that and told her that “it was not okay for her not to give a statement”.  PW2 told her she would have to come back to give a statement at a later stage anyway if she did not do it then.  PW2 also induced her by telling her that the police had no intention of laying a charge against her as they were only after the “big boss”.  D2 then requested to speak to D1 and PW2 concurred.  After relaying to D1 what PW2 had said and discussing with D1, D2 took D1’s advice and decided to give the statement then so as to avoid having to come back during the month she recuperated after birth(坐月).  She requested to have D1 present during the interview as the latter was her immediate superior at Eastweek Magazine at the material time and D1 could provide details of matters relating to work.  PW2 agreed to D2’s request and the interview was conducted with D1 being present.  D2 said she wrote on P8 and signed as directed by PW2.  As to the answers written in P8, D2 pointed out some answers which she said were supplied by D1, as to some other answers D2 said she was not sure whether they came from her.

Evidence of the prosecution

14. PW2, who is surnamed Lam and attached to OCTB Team B2 in March 2003 testified that he could not be sure whether he had contacted D2 to arrange for her to go to the police station as he had no record of such.  (It should be noted that the trial took place in December 2008, some 5 years 9 months after the event.)  PW2 said the office of OCTB was not situated in Tai Po Police Station, where he met D2.  He said someone should have called D2 and made the arrangement to meet up there and his duty was to arrest her.

15. PW1, the officer who arrested D1 the day before and took a record of interview (Exhibit P4) from D1 was also surnamed Lam but attached to Team B1 of OCTB.  There was no evidence before the magistrate that PW1 had any dealings with D2.

16. PW2 said D2 arrived at Tai Po Police Station with D1.  He confirmed her identity and learnt from her that D1 was her friend who was keeping her company.  PW2 arrested D2, in the presence of D1 in the Report Room, for the offence of publishing an obscene article.  Under caution D2 said she understood and had nothing to say.  PW2 then took D2 to the Duty Officer to make a report.  After the report, PW2 told both D1 and D2 that he was going to take them into a room to take a statement from D2, and he took them into an interview room at the Report Room.  PW2 said he allowed D1 to be present during the interview upon the request of D2.

17. Inside the room PW2 issued a notice entitled “Notice to Persons in Custody” (Exhibit P7) to D2.  After this procedure, D2 told PW2 she needed D1 to be with her when she gave a statement but she did not explain why there was such a need.  PW2 then continued to investigate the case and told D2 he would put questions to her.  D2, after being cautioned, wrote down in P8 that she was willing to answer questions and requested PW2 to write for her.  PW2 then questioned D2 and recorded both the questions and answers in P8.

18. PW2 posed the questions to D2 in accordance with a prepared format (Exhibit D1), questioning her about her position and job nature in Eastweek Magazine in general before concentrating on Issue 521 and D2’s role in relation to the nude photo, if any.

19. PW2 said before the commencement of the interview, he had warned D1 that all the words should come from D2 and no comments should be added.  PW2 admitted that during the interview, D1 had conversation(s) with D2 but such conversation(s) were not “from time to time”.  PW2 was writing down the questions and answers at the time so he did not make a record of what the conversation(s) were about, consequently he could not tell the court the contents of the conversation(s).

20. PW2 said at the time he did not know D1 was someone who had already been interviewed by one of his colleagues the day before.  He later admitted that before meeting D2, he was aware of D1’s name and that D1 was a suspect in the case.  Further, at the time when he interviewed D2, he was aware of D1’s “position and scope of duties” in Eastweek Magazine.  PW2 said he allowed D1 to be present as a result of D2’s request.  He did it out of fairness and he did not pay attention as to the suitability or otherwise of D1’s presence during the interview.

21. PW2 denied putting pressure on or inducing D2 as alleged by her.

Ruling of the magistrate

22. The magistrate did not accept the evidence of D2 and found nothing improper in PW2’s handling of the matter.  He further found that even if he were to believe D2’s versions her will was not “zapped or crumbled”.  P8 was thus admitted into evidence.

Submissions by Mr Wong

23. As to how D2 came to be at the police station, Mr Wong submitted that the police were in breach of Rule (b) of the Preamble to the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security on 2 October 1992 (Rules and Directions of 1992) when D2 was forced to go to the police station without being arrested and without being reminded timely of her rights — including her right of silence and to have legal representation.

24. In respect of P8, Mr Wong submitted there was no cogent evidence why D2 changed her mind and answered questions willingly shortly after she had clearly indicated she had nothing to say.  Mr Wong relied in particular the fact that D1 — a suspect in the case — was allowed to be present when the interview took place.  He submitted that the magistrate had failed to consider a breach of the Rules and Directions 1992 when D1, in his record of interview taken the day before, had implicated D2 and his presence affected the voluntariness and fairness of the interview.

How did D2 come to be at the police station?

25. I have already set out D2’s version of the event.

26. Basically PW2 said that since he made no record, he could not say for sure whether he was the one who had called D2 to arrange for her to go to the police station.  There was no evidence from him, or from anyone called by the prosecution, to refute D2’s allegation of how she came to be in the police station.

27. Rule (b) of the Preamble to the Rules and Directions 1992 reads :

“These rules do not affect the principles that :

(a) …

(b) That police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station.”

28. The learned magistrate deals with this aspect in the following manner (para. 18 of the Statement of Findings) :

“    In my view, PW2 and the police have done everything to accommodate D2’s needs by offering her the opportunity to attend the police station instead of being arrested at home, selecting a venue which was close to her home and allowing her to be accompanied by D1 throughout the interview.

29. There was of course no evidence from the prosecution (or from the defence) that D2 was informed over the telephone that she was to be arrested, and was then given the opportunity to be arrested at the police station instead of at home.  The evidence from D2 was that she was told if she did not go to give a statement, she would then be arrested at home.  There was nothing to alert D2 that the police were going to arrest her anyway.  If D2’s evidence were to be accepted, she was compelled to go to the police station with a threat of being arrested at home, and not by any actual arrest.  It was not simply a case that she was offered an opportunity to attend the police station.

30. According to the evidence of PW2, he immediately arrested D2 when D2’s identity was made known to him.  This part of the evidence was not challenged by the defence.  D2 was not interviewed before her arrest (as indicated over the telephone — according to D2).  Since D2 was arrested immediately, there does not appear to be any reason for any police officer to utter a threat of arrest to D2 — using the pretext of getting her to give a statement.  There does not appear to be any benefit to PW2 who had to travel to Tai Po Police Station to see D2, there was no saving of time or effort on the part of the police.

31. Bearing in mind the trial took place some 5 years 9 months after the event, it is not surprising that PW2 could not remember much of the details, in particular when there was no record made.

32. If the prosecution fails to call any witness and in the absence of such evidence a doubt is created, the prosecution runs the risk that the court may make an adverse inference against the prosecution and rule the cautioned statement inadmissible : (See R v Lau Ming Hei,HCMA66/1966).

33. Ms Grace Chan for the respondent submitted that D2 had not clearly identified who this “Lam Sir” was.  I do not agree.  D2 had clearly indicated that it was “Lam Sir” of “O Kei”.  It is not a lack of identification, but a lack of proper record plus the passage of time which rendered the prosecution not able to adduce evidence to show who had called D2 and what was said.

34. Was there a doubt on which the court could make an adverse inference? I think not.  The fact that D2 was arrested immediately after her identity was confirmed means that she could not be under any impression that she was only there at the police station to give a statement.  Even if she were indeed tricked by the police, any false impression harboured by D2 was immediately dispelled by the prompt arrest by PW2.  While it is possible that the police tricked D2 to go to the police station, it is not inherently probable for the police to do so when a decision to arrest her was already made prior to her arrival at the police station.

35. I do not think the evidence before the magistrate shows that there was any breach of Rule (b) of the Rules and Directions 1992.  In any event, it is trite law that the breach of administrative Rules and Directions for the guidance of police officers does not automatically render an admission or confession inadmissible (See HKSAR v Chan Ka Chun, CACC42/1999, and R v Ng Wai Fai, CACC238/1989).

36. I do not agree with Mr Wong’s submission that D2 was not reminded of her rights timely.  There is no basis for saying that the police must tell D2 her rights over the telephone.

Was any oppression and/or inducement practised on D2?

37. I have already related briefly the evidence of the prosecution and the defence in this respect.  I will now set out the magistrate’s finding on this (paras.14 and 15 of the Statement of the Findings) :

“14.   I believe PW2’s evidence regarding this aspect.  PW2 did not say anything to threaten, compel or induce D2 to agree to be interviewed or to give any statement.  Even if he did say any of those things as alleged by D2, D2’s mind was not zapped or crumbled.  D2 was obviously aware of her right because her immediate response after being cautioned was she had nothing to say.  However, that does not mean she was unwilling to answer questions.  In my view, a person having nothing to say in respect of an alleged crime is quite different from her willingness to answer questions concerning the allegation because the former requires the person to actively make a statement whereas the latter only involves the person answering questions, which is comparatively passive.  The top 6 lines on page 3 of Exhibit P8 clearly state ‘[I] continue to make enquiries of you about the offence of publishing an obscene article for which you were arrested.  However, I remind you that you are not obliged to answer any of these questions but if you do, the questions and answers will be taken down in writing and may be given in evidence.  Do you understand?’  D2 then wrote on the following line ‘I am willing to answer questions.’  This passage may not carry much meaning to a drug addict or a shoplifter; however, as a former Executive Chief Editor of a widely circulated Chinese magazine in Hong Kong, D2 must have a high level of alertness and sensitivity for written words.  She told PW2 that she had nothing to say once, she could have easily indicated to PW2 and/or written on her Record of Interview ‘I am not willing to answer any questions’, if that was her intention, and I believe that would be the end of the matter.  But what took place was the exact opposite.  D2 signed at the end of each answer and wrote 2 declarations respectively on pages 3 and 9.  D2 must have known and understood what she wrote.  Having written the 2 declarations herself, I believe D2 has signified that she agreed with the contents of Exhibit P8 and that all the answers were given by her voluntarily.

15. According to D2, she brought D1 along to the police station thinking that he could assist her.  D1 was no stranger to D2.  At that time he was her boyfriend.  He is also her former immediate superior at work and the father of her daughter, who was born 4 days after the interview.  She admitted she trusted D1 that he would not do or say anything to harm her.  She said she and D1 had a discussion and then she decided to take part in the interview.  So even if I accept her evidence, it is obvious that after discussion, they arrived at a considered decision to be interviewed.  According to D2’s evidence, she left the employment of Eastweek magazine in November 2002.  In other words, on 10 March 2003, D1 was no longer D2’s immediate superior at work; and therefore, not a person in authority to her.  He was D2’s intimate boyfriend and was trusted by D2, who requested for his company at the police station.  D2 cannot now shift the responsibility to D1.  In my view, the fact that D2 was very pregnant at the time has no bearing on my decision because she must have taken her physical conditions into consideration in reaching her decision.  If she was in fact feeling so unwell and tired, she could have out right refused to answer any questions or terminated the interview at any stage.  But she did not do so.”  [Emphasis applied]

38. First of all, I cannot agree with the magistrate’s findings that D2’s will was not “zapped or crumbled” if PW2 had in fact said those words to her as she testified.  (Although the magistrate used the word “zapped”, I take him to mean D2’s will was not sapped).  One must not forget D2 was a woman who was never in trouble with the police before, and she was also heavily pregnant at the time.  There is no dispute that she was arrested and cautioned immediately upon PW2 confirming her identity and she told PW2 she had nothing to say.  If what she had said were true — i.e. as soon as she had said that she had nothing to say, PW2 immediately told her basically she had to say something — that would amount to PW2 informing D2 of her rights on the one hand, and immediately withdrawing that right from her on the other.  In her physical and mental state at the time, can one be sure that she was not confused and intimidated — even with her education and work background?

39. If what she said about the inducement by PW2 were true, it would be difficult to see how such an inducement would have no effect on her whatsoever.

40. Further, if what D2 said about how she came to speak with D1 were true, i.e. that she only requested to speak to D1 and acted in accordance with D1’s advice after PW2 had said those words of coercion and inducement to her, even accepting D1 was not strictly a person in authority to D2 — as he was no longer her immediate superior by that stage — can one be sure that the combined effect of what PW2 and D1 had said to her did not influence her to such an extent that she agreed to answer questions posed by PW2, thus rendering the voluntariness of P8 in doubt?

41. Having said that, of course the magistrate did not accept her evidence in this respect at all.  What I have to decide is whether the magistrate was correct in rejecting her evidence and finding that the prosecution had proved beyond reasonable doubt that P8 was made voluntarily by D2.

42. At the outset I will reiterate that an appeal court should be slow to interfere with any findings of facts by a magistrate or judge who enjoys the advantage of actually seeing and hearing the witnesses when they give evidence.

43. I find nothing wrong with the magistrate’s analysis of the difference between saying something in response to an arrest and answering questions posed by the police during the investigation.  The arrest was in the context of the police having reasons to suspect that D2 had taken part in the publishing of Issue 521 of Eastweek Magazine — which was later classified as Class III by the Obscene Articles Tribunal.  D2 was told she was not obliged to say anything unless she wished to do so but what she said might be taken down in writing and given in evidence.  D2’s reply that she had nothing to say was of course in response to that arrest.  After PW2 made a post-record of the arrest, he then told D2 that he would continue to make enquires of her in relation to the publishing of an obscene article and would like to ask her some questions.  D2 was duly cautioned and she wrote on P8 she was willing to answer.

44. There is no general principle that once a suspect has indicated he has nothing to say under arrest that the police cannot continue with their investigation by putting questions to the suspect, provided that the questions are fair and not oppressive in all the circumstances.

45. Having viewed the questions posed by PW2, I find that there is nothing improper, oppressive or unfair in the questions themselves.

46. It is indeed rare for an adult suspect not mentally incapacitated to be interviewed by the police in the company of another adult.  The fact that D2 was clearly heavily pregnant and that she did attend the police station in the company of D1 of her own accord does indicate that it might have been through kindness or consideration that the police allowed D2 to have the company of someone she trusted, to give her moral support.  However, that was not exactly the reason given by PW2 why he allowed D1 to be present.  PW2, possibly because of the passage of time, could not even remember if D2 appeared to be heavily pregnant.  He could not give any reason why he acceded to D2’s request except to say it was “for fairness”, without saying why it was fair to allow another person to be present during the interview.  PW2 made no record of D2’s request and under what circumstances he agreed to her request.

47. It could well be that PW2 did not expect the trial to take place almost 6 years after the incident, nevertheless, police officers should be vigilant and should make a note, even though a brief one, of their actions or what had taken place, particularly when something out of the ordinary has occurred.

48. But for the fact that D1 was not merely D2’s common law husband, that he was also a suspect in the same case, the magistrate’s findings that D2 gave the answers in P8 voluntarily would not have caused me concern.  In other words, the presence of a pregnant suspect’s husband or trusted one during the interview would not, by itself, raise a doubt that the suspect has not given a statement or answered questions voluntarily.

49. What concerns me here is that D1 was not only someone D2 trusted, someone who could or would give her moral support, D1 was also a suspect in the same case and this fact was known to PW2.  Although this issue was raised by defence counsel, the magistrate does not appear to have dealt with it in his reasoning.

50. I am not suggesting for one moment that the magistrate needs to set out his thinking process in full.  On the other hand, it is extremely rare that a suspect is allowed to be present when the police interview another suspect in the same case.  When such an unusual situation occurs, the magistrate needs to examine the evidence very carefully when considering the admissibility of the record of interview.

51. Whilst I must acknowledge the fact that I do not have the benefit of actually seeing and hearing PW2 give evidence, and that I am only relying on the written transcript, I do find that PW2 was far from candid when he was questioned in relation to his knowledge about D1’s suspect status when he allowed D1 to be present. 

52. When PW2 was first asked why he allowed D1 to be present, he replied that at the time D2 requested that and he did not think he asked her for the reason.  The magistrate then posed this question (Appeal Bundle P.208Q) :

“Court : did you at that time know that Mr Wong was someone — I wouldn’t say he was a suspect, but did you know at that time that Mr Wong was someone who had already been interviewed by one of your colleagues?

A.  I had no idea at the time.”  [Emphasis added]

53. After defence counsel put to PW2 that he knew D1 was interviewed the day before, PW2 said he knew at a later stage, but not at the time of the interview (P.209C).

54. Later on, it was established that PW2 was heavily involved in the case: assisting colleagues to arrest different people; doing home search and taking statements; involved in documentation work and so on (P.214A-F).

55. PW2 finally admitted he knew D2 was a suspect.  The evidence came about this way (P.215T) :

“Mr Yu :    Did you know [D1] got involved in that case before meeting Miss Lee?

(Interpreter clarifying the question)

A.  I had knowledge of his name, but I had no idea that he had already been approached by the police.

Q.  So, you knew he was a suspect in this case?

A.  I knew that he was a staff member of Eastweek.

Q.  Please, answer my question directly, you knew he was a suspect in this case?

A.  I agree.”

56. Later on still, PW2 admitted that at the time when he interviewed D2, he had already known that D1 was a staff member of Eastweek Magazine and that he was her friend.  He also knew D1’s position and scope of duties (P.216Q).

57. Although PW2 claimed that he did not pay attention at the time as to whether it was suitable for D1 to be present during the interview (P.217Q), the fact that he was less than candid or forthcoming when revealing his knowledge of D1 being a suspect should raise a question mark about his assertion, thus affecting his credibility.  Had the magistrate fully considered this aspect of PW2’s evidence, would he had been sure that PW2 was not hiding something, or that there might have been some truth in what D2 had said?

58. When the magistrate, in his question to PW2, specifically used these words “I wouldn’t say he was a suspect”, PW2 already knew full well that D1 was indeed a suspect – as he admitted finally under cross-examination — yet there was no attempt on PW2’s part to correct the magistrate or to inform the magistrate of the true position.  PW2’s answer left the magistrate with the impression that D1 was not a suspect or that PW2 did not know he was a suspect.

59. I find that this unusual aspect of the case causes me doubt as to whether the magistrate has fully considered the evidence before him and has not rather lightly rejected D2’s evidence as to why D1 was present during the interview.

60. For this reason I find that there is at least some doubt whether D2 voluntarily gave the answers recorded in P8, rendering the admissibility of P8 questionable.

61. As the whole case against D2 was based on the answers in P8, with its admissibility being doubtful, D2’s conviction was unsafe and unsatisfactory.  The appeal is allowed on this ground.

62. Strictly speaking, there is no need for me to consider the other ground of appeal: that the magistrate erred in drawing the only irresistible conclusion of guilt from the answers in P8.  However, for the sake of completeness, I will briefly deal with this ground.  Having read the answers in P8, I find no substance in this argument.

63. But for the doubt relating to the admissibility of P8 I have mentioned, the magistrate’s conclusion that D2 played an important role with the elements of leadership in the publication of the subject article and cover could not be faulted.

64. For the reasons stated, the appeal is allowed.