HKSAR v. HO KAI WAH

DCCC 992/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 992 OF 2013

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REASONS FOR VERDICT

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1. The defendant pleaded not guilty to a charge of trafficking in a mixture containing 6.65 grammes of methamphetamine hydrochloride (ice).

2. It was not disputed that the defendant was arrested by police officers outside Room B1, 1^st Floor, Kam Po Building, 69-77 Woosung Street, Yau Ma Tei, Kowloon (the Flat) and that at the time of his arrest he was in possession of a quantity of ice. The arresting officer (PW1) attested that shortly after intercepting the defendant he searched him and in his left front trouser pocket he found two resealable plastic bags, P1 and P2. P1 contained four smaller packets containing 5.19 grammes of ice.  P2 contained one smaller packet containing 1.46 grammes of ice. The defendant did not dispute that he was in possession of P1 but denied possession of P2. The defendant also maintained that he possessed P1 for his own consumption.

3. At the outset of the trial the prosecution indicated that they intended to rely on certain admissions allegedly made by the defendant at the scene and post recorded by PW1, a subsequent record of interview and  an alleged reply by the defendant after he was charged. The admissibility of all the alleged admissions was challenged on the grounds of involuntariness and unfairness. The admissibility of  the alleged admissions was dealt with by way of the alternative procedure and at the conclusion of the prosecution case and after hearing evidence from the defendant on the special issue, I ruled that only the alleged admission when he was arrested and the subsequent notebook entry relating to that alleged admission should be admitted into evidence.

The prosecution evidence

4. The principal prosecution witness in this case was Detective Police Constable 33759, PW1. At the relevant time PW1 was attached to the District Anti-Triad Section 3 of Yau Tsim District.  At 1640 on Friday 30 August 2013 PW1’s  team was briefed by Inspector Chan (PW13) about a dangerous drugs operation to be conducted at the Flat. A number of officers were to attend the premises divided into two teams, one led by Detective Sergeant 50369, PW3 and the other team led by Woman Detective Sergeant 56594 (WDS). The team led by WDS were to go to the flat itself whilst the team led by PW3 was to carry out observations in the corridors near the flat.

5. PW1 said that at 1740 he arrived at a staircase of the building at  Woosung Street and met two other officers at about 1916. PW1 said that he took up a position so as to enable him to observe the door of the Flat and by that time the team led by WDS were already inside the Flat. An exhibits officer, PW2, who was part of the team led by WDS, attested that the flat was entered at 1915 hours.

6. PW1 said that at 1921 hours he saw the defendant walk from the ground floor staircase of Woosung Street to the door of the Flat. PW1 said the defendant knocked on the door of the Flat  and was looking around him. PW1 said that at that stage he walked forward and revealed his police identity producing his warrant card. PW1 made enquiries of the defendant and inspected his identity card. PW1 said he asked the defendant why he was there and the defendant allegedly said he was looking for some friends called Ah Biu and Siu Hung. It was later adduced in evidence that these two persons were located inside the flat and later arrested by the police. PW1 said that he noticed the defendant covering his left hand trouser pocket with his left hand and the defendant appeared shifty. PW1 suspected that the defendant was in possession of dangerous drugs and upon searching the defendant found Exhibits P1 and P2 inside his left hand front trouser pocket.

7. PW1 said that he arrested and cautioned the defendant for possession of dangerous drugs and the defendant allegedly replied “ I brought the stuff here to consume with Siu Hung and Ah Biu together”.

8. PW1 said that he immediately made a post record of his arrest of the defendant and the defendant’s reply in his police notebook, P26. PW1 said that having made his post-record he read it to the defendant and allowed the defendant to read it himself  before inviting the defendant to sign his notebook. PW1 said that later, back at Tsim Sha Tsui police station he asked the defendant to again read the entries in his notebook and write out declarations to the effect  that he had read the contents and that  they were true and voluntary.

9. PW1 said that at the scene, after making the entries in his notebook, he  searched a sling bag carried by the defendant from which he recovered two mobile phones which the defendant said were spare phones. PW1 said in the right trouser pocket of the defendant he recovered another phone, LG brand. PW1 said the defendant said that he frequently used the LG phone. PW1 said that at 2102 hours he handed over exhibits P1, P2 and the LG phone to the Exhibits officer, PW2.

10. PW1 said that at 2107 hours the defendant and two persons arrested inside the Flat , Miss Lam Hung and Mr To Wah Biu, were taken to Yau Ma Tei police station. PW1 said that the arrested persons and exhibits were taken before the duty officer and the circumstances of the arrests were explained to the officer. PW1 said that the defendant made no complaints to the duty officer.

11. PW1 said that at the police station a notice to persons in custody, Ex P27, was read to the defendant who then signed it.

12. PW1 said that the three arrested persons were then taken to Tsim Sha Tsui police station where they arrived at 2143 hours. PW1 said that inside Room 227 the contents of his notebook, P26,  relating to the defendant’s arrest, were read to the defendant and the defendant was invited to write the declarations at the conclusion of P26. These declarations stated, inter alia, that PW1 had read the post record, it was accurate and voluntarily made.  PW1 said that the defendant made a mistake in regard to the first declaration and was invited to write it out again which he did.

13. PW1 said that the defendant refused to participate in a video recorded interview but did agree to an interview which was to be recorded in writing by PW1, Exhibit PP28. PW1 said that the defendant was later charged with trafficking in dangerous drugs. PW1 said that at that stage the defendant became emotional and PW1 was unable to record the defendant’s response on the charge sheet but he did later record what was said by the defendant in a notebook, Exhibit PP31.

14. PW1 said that at the time of arrest, the defendant had HKD1400 in his wallet.

Cross Examination of PW1

15. The evidence of PW1 was challenged in relation to both what happened at the scene and at the police station.

16. The defendant’s case was put to PW1. The defendant gave evidence in the voir dire adopting much of what was put to PW1. His case was that when he arrived at the doorway of  the Flat, PW1 was standing there. The defendant said that he thought PW1 was there to engage the services of  Miss Lam Hung ( Siu Hung) who was a prostitute. The defendant maintained that at that stage PW3 came out of the flat, identified himself and asked why the defendant was there. The defendant said he was looking for a prostitute. He said PW3 said  that he was from Yau Tsim anti-triad squad and asked the defendant who he was following. The defendant said he was Jordan Tor-Tei whereupon the officer slapped his face and he was subsequently punched in the abdomen by  2-3 officers. The defendant said he was then searched and P1 was found in his possession. The defendant said that PW3 asked him how he got the drugs and he told him Ah Biu had arranged someone to sell him the drugs for HKD1500.

17. The defendant said that the officer went back into the Flat and later came out and said the boss told him they would only proceed with possession. The defendant said he was then arrested and said to PW1 that the four packets of drugs were bought for his own consumption.

18. The defendant said PW1 made no notebook entries at the scene.

19. The defendant said that on the way to the police station he was told not to make any complaint or request for medical examination otherwise he would be charge with trafficking.

20. The defendant said that before he went to the Flat he had consumed ice and was feeling sleepy and finding it difficult to concentrate.

21. The defendant said he signed the officer’s notebook, P26, and wrote the declarations therein without reading the notebook and was told it related only to the finding of the ice and his arrest for possession.

22. The defendant said he was never given the option of a video recorded interview. He said many of the answers in the record of interview were made up by  PW1 and he was never allowed to read the statement. The defendant said that when he was charged with trafficking he only replied to the effect that the drugs found on him were for his own consumption.

23. The defendant’s version of events was put to and refuted by PW1 and the other police officers called to give evidence for the prosecution.

24. PW1 denied that the defendant appeared sleepy or to be under the influence of drugs.

25. PW1 said that he was not clear as to whether the supplying of drugs to others is trafficking if without payment.

26. The other police officers called to give evidence for the prosecution gave evidence consistent with that of PW1.

PW2 DPC 9158 – The Exhibits Officer

27. PW2 was mainly involved in what occurred inside the Flat. He was called by the prosecutor to confirm that the drugs seised by PW1 from the defendant were handed to him and he later put then into the tamper-proof envelopes produced to the court as Exhibits P1 and P2.

28. In cross-examination he confirmed that on a singly bed inside the Flat he recovered two transparent resealable plastic bags found to contain 1.08 grammes of a mixture containing 0.15 grammes ketamine and .45 grammes of  a mixture containing .03 grammes of ketamine.

29. PW2 denied that P2 was found by him inside the Flat.

30. PW2 said that the two occupants of the Flat, Miss Lam Hung and Mr To Wah Biu,  were arrested and it appeared as though the female arrested was the occupant of the Flat.

31. PW2 confirmed that the photographs 17 and 27 of Photograph Album produced as P24A  show 16 straws found on the single bed inside the Flat similar to the straw attached to the inhaling apparatus found inside the Flat,  P6.

PW4 DSPC 50364

32. PW4 was one of the officers involved in the arrest of the occupants of the Flat.

33. PW4 said that when he arrived at the Flat at 1912 hours he saw Miss Lam coming out of the Flat and he intercepted her. He said that she had no ID card in her possession when he intercepted her and they went into the Flat where she recovered and produced her ID card. PW4 said that Miss Lam had the keys to the flat in her possession. PW4 said that when they went back into the flat he saw there was a single and a double bed and Mr To Wah Biu was found sitting on the single bed.

34. PW4 said that on a tray inside the Flat there were a large number of condoms and the Flat was used by Miss Lam for purposes of prostitution.

Admitted Facts

35. It was an admitted fact that Exhibits P1 and P2 contained ice as detailed in the charge.

36. It was an admitted fact that the “inhaling device”, P6,  found inside the Flat contained a liquid which was found to contain traces of ice, P10.

37. Photographs taken at the scene were produced as Exhibit P24 and P24A. Photographs 2 and 3 of  P24 show P6. Photographs 17 and 27 of Exhibit 24A show a number of straws similar to the straw attached to P6.

Special Issue

38. The defendant elected to give evidence on the special issue. His evidence was largely consistent with the defence case as put to the prosecution witnesses.

39. In cross-examination the defendant was referred to a letter of complaint he had written to the Commissioner of  Complaints Against Police Officers Department  in which he raised concerns about having been charged with trafficking whereas the two persons arrested inside the Flat were only charged with possession of dangerous drugs. He raised questions as to the probity of the officers handling his case. This evidence was only relevant to the issue of the defendant’s credibility on the special issue. I noted that nowhere in this letter did the defendant make any of the allegations that he has made against the police officers in this case.

40. Moreover when he was asked in cross-examination as to why he agreed to write the declarations at the end of the record of interview he said he wrote them because he was asked to. He said he trusted the police officers as they told him he would only be charged with possession of dangerous drugs.

41. Having considered all the evidence in relation to the special issue I was satisfied that so I was sure that the defendant was not telling the truth as to the circumstances in which he was arrested and dealt with by the police officers. The police officers were extensively cross-examined over a period of days. There were some minor discrepancies in their evidence but given the number of officers involved, the period over which they dealt with defendant and the time elapsed since those events, such discrepancies did not cause me to doubt that the officers were  reliable and honest witnesses.  I was satisfied beyond reasonable doubt that the defendant was not induced, threatened, assaulted or deceived by the officers.

42. I considered the question of unfairness in relation to the various alleged admissions and statements which the prosecution sought to adduce in evidence.

43. The prosecution case was that at 1925 hours  PW1 arrested the defendant outside the Flat having found 5 packets of suspected dangerous drugs in his trouser pocket. When cautioned he was alleged to have said “ I brought the stuff here to consume with Siu Hung and Ah Biu together”.

44. At the time of the defendant’s arrest, there were police officers inside the Flat. Subsequently the officers found inside the Flat two packets of suspected ketamine and what the officers suspected to be an “ice pot”, P6. Inside the flat Miss Lam Hung and Mr To Wah Biu were arrested and at 2107 they and the defendant were taken to Yau Ma Tei police station.

45. At 2210 hours PW1 started to take a record of interview from the defendant. The defendant was reminded that he was still under arrest for possession of dangerous drugs.

46. Counsel for the defence submitted that, in the particular circumstances of the case, at that stage in the investigation, the defendant should have been further cautioned  for trafficking in the drugs allegedly found in his possession.  It was submitted that before the record of interview, having considered all the evidence which the police had in their possession at that  stage, PW1 had evidence which would afford reasonable grounds for suspecting that the defendant had committed the offence of trafficking and should have been further cautioned at that stage.

47.  The court was referred to the case of  HKSAR v PANG Ho Yan CACC 264 of 2009. The CA in that case stated as follows:

“The principles

27. Rule II of the Rules and Directions for the Questioning of Suspects and the Taking of Statements requires as much:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

So, too, Art. 5(2) of the Hong Kong Bill of Rights Ordinance requires that:

“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

That is a reflection of the terms of article 9 of the International Covenant on Civil and Political Rights, to which constitutional effect is given by article 39 of the Basic Law.

28. It is conceded by the respondent that once the applicant, in the course of the videoed interview, commenced talking about past engagement in trafficking in dangerous drugs, he ought then to have been cautioned in respect of that suspected offence.

29. However, the respondent contends, correctly, that breach of the Rules does not of itself dictate that in the exercise of discretion, the trial judge must exclude the evidence. The question is always whether the right to a fair trial has been adversely affected. The applicant was at all times aware of his right of silence; the series of questions posed by the police in relation to trafficking in dangerous drugs followed naturally from an answer volunteered by the applicant and, as was clear from the applicant’s evidence as a whole, it is argued, the applicant well knew that he had a choice whether or not to answer any further questions.

30. It is as well to remind ourselves of the rationale behind the requirement to administer cautions to those suspected of criminal offences, lest by the passage of time and constant repetition it be considered a mantra of no significance.

31. The fundamental principles have been rehearsed in Secretary for Justice v Lam Tat Ming and Another (2000) 3 HKCFAR 168 where Li CJ said, at pp 178 –179, that in relation to proof of voluntariness of a confession – not in issue in this appeal – “the underlying rationale is based both on the need to ensure the reliability of confessions as well as the right of silence”, that right being “deeply rooted in the common law”, a right “to choose whether to speak or to remain silent [and in particular… a right [of a suspect] not to incriminate himself.” That right, he pointed out was one that was protected by the Rules. The judge, he said, had an overriding duty to ensure a fair trial for an accused according to law and for that purpose he had a discretion to exclude admissible evidence, including a voluntary confession:

“… The essential question is not whether the law enforcement agency has acted unfairly in a general sense. … The court’s function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.

The test of unfairness is not that of a game governed by a sportsman’s code of fair play … . Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused.”

32. It would seem logical to suggest that the right to choose whether to speak or to remain silent is denuded of its force if the choice is based on a material misapprehension, created by the circumstances of his questioning, as to the nature of the peril in which, by such answers as he might advance, he may place himself. There is support for that proposition in the judgment of the English Court of Appeal in R v Kirk [2000] 1 WLR 567 at p 572:

“However, as it seems to us, where the police, having made an arrest, propose to question a suspect or to question him further in relation to an offence which is more serious than the offence in respect of which the arrest was made, they must, before questioning or questioning further, either charge the suspect with the more serious offence … or at least ensure that he is aware of the true nature of the investigation. … They must do that so that he can give proper weight to that factor, namely the nature of the investigation which is being conducted, when deciding whether or not to exercise his right to obtain free legal advice … and in deciding how to respond to the questions which the police propose to ask of him.

It seems to us that the [Police and Criminal Evidence] Act of 1984 and the codes of practice which exist under it proceed upon the assumption that a suspect in custody will know why he is there and, when being interviewed, will know it least in general terms the level of offence in respect of which he is suspected and, if he does not know, and as a result does not seek legal advice and gives critical answers which he might not otherwise have given, the evidence, as it seems to us, in normal circumstances, ought to be excluded pursuant to section 78, because its admission will have a seriously adverse effect on the fairness of the proceedings: and that is the approach which we, for our part, would apply to this case.”

33. Some play has been made in argument of the rather different facts of that case from the present. In that case the police concealed from the suspect highly relevant material which, had it been revealed to the suspect, would have made him aware that he stood at risk of a much more serious charge than that of which he was aware. There is that distinction, because in the present case no material factual information was concealed by the police and the initial statement about trafficking in dangerous drugs was one which the police could not have anticipated.

34. Even so, the rationale is there and applies equally to the present case.

35. It seems to us sufficiently clear that in the course of questioning by the police, both at the time of his arrest and in the interview which followed a few hours later, the applicant was acknowledging – it was difficult for him to do otherwise – that he was indeed in possession of the small quantity of drugs, the air pistol and the golf club; that he knew from the facts which had been uncovered by the police, from the terms of the arrest and the cautions which had been administered, that he faced the prospect of being charged with having committed criminal offences in respect of those three matters; those are the matters for which he had been expressly arrested and cautioned and in respect of which he was offering what he thought was mitigatory explanation. It is clear too that in his testimony he was saying, or attempting to say, that it did not really occur to him, and he was not alerted to the fact, that in offering his explanation for possession of the airgun, and in answering a host of questions that followed that explanation, he was exposing himself to the real risk of prosecution for an offence of much greater gravity than the offence which he was explaining.”

48.  Having considered all the evidence, I was of the view that the defendant should have been cautioned for trafficking in dangerous drugs at the start of the record of  interview, Exhibit PP28. I noted that PW1 said that he was not aware that supplying drugs to other persons without payment  amounted to trafficking. Having considered the principles set out in PANG, I decided to exercise my discretion not to admit PP28 into evidence nor the defendant’s alleged reply to the charge on grounds of  unfairness.

49.  I was sure that the defendant’s alleged admission to PW1 following his arrest and caution at 1925 hours  was made voluntarily as was the making of the  officer’s post record, P26. I saw satisfied that there were no reasons to exercise my residuary discretion to exclude the alleged oral admission and the post record thereof.

50.  At the conclusion of the prosecution case I found that the defendant had a case to answer. The defendant elected not to give evidence on the general issue nor to call any witnesses.

Directions

51.  I reminded myself that the prosecution are required to establish the guilt of the defendant beyond reasonable doubt, the defendant has nothing to prove.

52.  I reminded myself that no inference could be drawn against the defendant with regards to his election to remain silent.

53.  I reminded myself that where the prosecution invite the court to draw inferences from circumstantial evidence, any facts relied upon must be proved beyond reasonable doubt and any conclusion drawn from such facts must be the only conclusion that can reasonably be drawn from such facts, the inference must be an irresistible inference.

54.  I reminded myself that trafficking in dangerous drugs is defined in  s.2 Dangerous Drugs Ordinance Cap 134  and includes supplying or otherwise dealing in dangerous drugs.

Evaluation of the Evidence

55.  As I stated above, I found the police officers to be reliable and credible witnesses and I was sure that they told the truth in relation to what occurred on the evening in question. There was extensive cross-examination of the prosecution witnesses and the few discrepancies in their evidence did not cause me to doubt their veracity.

56.  It was not in dispute that on 30 August 2013 a team of police officers carried out a raid at the Flat. I was satisfied so that I was sure that at 1921 hours the defendant arrived at the Flat and knocked on the metal gate at its entrance. The defendant was looking around him. At that stage, PW1 approached the defendant and I was sure that he found Exhibits P1 and P2 in the defendant’s  front left trouser pocket. At 1925 hours the defendant was arrested and cautioned for possession of  P1 and P2 and  he replied “ I brought the stuff here to consume with Siu Hung and Ah Biu”.

57.  The defendant had HKD1400 in his wallet.

58. At the time the defendant was detained, other officers were making enquiries inside the Flat. Inside the Flat, the officers seized an inhaling device, P6. Inside the glass bottle of P6 there was some liquid which contained traces of ice. 16 straws similar to the straw attached to P6 were found inside the Flat. The officers also found two small packets of  ketamine inside the  Flat.  Lam Hung and To Wah Biu were arrested inside the Flat and at 2107 all three arrested persons were conveyed to Yam Ma Tei police station.

59. The Flat was apparently occupied and used by Miss Hung for prostitution. She was leaving the Flat when the officers arrived to conduct their raid of the premises.

60. In all the circumstances I had no doubt that the defendant was intending to enter the Flat to consume drugs therein. I was sure that the defendant was expecting other persons to be inside and that he was intending to share and consume the drugs in his possession inside the flat with its occupants. I was therefore sure that the defendant was in possession of  P1 and P2 for the purpose of trafficking.