SECRETARY FOR JUSTICE v. CHUNG WAI SING AND OTHERS

HCMA225/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.225 OF 2004

(ON APPEAL FROM KTCC 5639 OF 2002)

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J U D G M E N T

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Background

1. This is an appeal by way of case stated on the application by the Secretary for Justice.  The facts giving rise to the case are as follows.  

2. On 8 November 2001, a team of police officers from the Kwun Tong police station conducted a raid against illegal gambling activities in Tsui Ping Estate, Kwun Tong.  Unknown to the police, the ICAC was conducting a long-term investigation on suspected police irregularities in that area.  On the day in question officers of the ICAC had already arrived at the scene where the police had targeted and activities on that day were recorded on hidden surveillance video cameras set up by the ICAC.

3. As a result of the police operation a number of civilians were arrested for unlawful gambling.  When interviewed under caution the arrested persons admitted to taking part in unlawful gambling and each was charged with unlawful gambling in a place not being a gambling establishment, contrary to section 13(2) of the Gambling Ordinance, Cap.148.  They pleaded guilty to the charge in the Kwun Tong Magistracy and each received a fine.

4. In the meantime officers of the ICAC reviewed their video recording of the police activities.  They came to the conclusion that the defendants had not been shown on the video tapes as having taken part in the unlawful gambling activities for which they were arrested and charged.  The ICAC suspected that the defendants had agreed to put themselves forward for the arrest even though they had not participated in the unlawful gambling activities.  They had also falsely admitted to the gambling charge in their cautioned statements and pleaded guilty to it in court.  Subsequently the ICAC made a number of arrests and those arrested included members of the police team that took part in the raid.  The three respondents in the present appeal were jointly charged with one charge of Conspiracy to Pervert the Course of Public Justice, contrary to Common Law and the Crimes Ordinance, Cap.200. 

5. The prosecution’s case against the respondents was that a man nicknamed “Sau Nga Sing” had persuaded the respondents to shoulder the blame and to falsely admit to having unlawfully gambled at the scene.  The respondents pleaded not guilty to the conspiracy charge.  All were represented by counsel at the trial.  The evidence against the respondents was mainly contained in records of interviews and in their oral and written responses when charged with the offence.  In the course of the trial, the prosecution also played in court the ICAC surveillance video tape of the scene on 8 November 2001.  

6. Officers of the ICAC gave evidence at the trial that they had arrested the 2^nd and 3^rd respondents on 6 December 2001 and the 1^st respondent on 3 August 2002.  After their arrests, each respondent was interviewed under caution and in the case of the 3^rd respondent, he was interviewed twice.  All interviews were recorded on video tape.

7. The defence objected to the production of the video interviews.  The 1^st and 2^nd respondents challenged the admissibility of the video interviews and their associated documents on the basis that they were obtained as a result of threats and inducements by the ICAC officers and hence involuntary.  The 3^rd respondent did not challenge the admissibility of the first interview but the second interview was challenged on the basis that he was induced into taking part in the interview by the ICAC officer.  All respondents also challenged the oral and written responses when they were charged on the basis that they were induced to write down their alleged reply.

8. The magistrate adopted the alternative procedure to determine the issue of admissibility and at the close of the prosecution case, ruled that all video interview records and the respondents’ oral and written answers to the charge were inadmissible.  There being no admissible evidence against the respondents, all were then discharged.  The gist of the magistrate’s reasons for ruling the video interview records and the replies to the charges inadmissible was that he found there had been serious breaches of the 1992 Rules and Directions for the Question of Suspects and the Taking of Statements.

9. The prosecution applied for a review of the magistrate’s decision pursuant to section 104 of the Magistrates Ordinance, Cap.227.  The review was dismissed and the magistrate affirmed his decisions.  The prosecution then appealed by way of case stated.

10. There are three questions signed and stated by the magistrate in the Amended Stated Case dated 20 August 2004.  The appeal hearing was first set down for 20 April 2004 but there were difficulties in locating the 2^nd respondent and the proceedings had to be further adjourned on two occasions.

11. At the appeal, the 1^st and 3^rd respondents were represented by Mr Hoosen of counsel.  The 2^nd respondent was not legally represented and was absent.  Mr Simon Tam for the appellant informed the court that in the event that the court rules in favour of the respondents, the prosecution will not seek a re-trial.  On being so informed, Mr Hoosen indicated that the 1^st and 3^rd respondents would not contest the appeal and would not be submitting any legal arguments on their behalf.

Question 1

12. The first question stated by the magistrate relates to the respondents’ written reply to the charges.  It reads :

“Whether I was correct in ruling inadmissible all evidence of the admissions made by the Respondents during the charging process because the person being charged with an offence had not been given an informed choice as to whether he should write down the oral answers in response to the charge but was required to do so.”

13. The admissibility of the replies was contested on the basis that they were obtained as a result of inducement held out by Officer Lai from the ICAC who gave evidence as PW8.  The 2^nd respondent further alleged that it was not PW8 who charged him but it was another officer surnamed Wu.

14. The evidence of Officer Lai was that after formally charging each respondent, he read to the respondent the printed form of the caution appearing at the foot of the charge sheet.  Those words were :

“Do you wish to say anything? You are not obliged to say anything unless you wish to do so, but whatever you say may be taken down in writing and may be given in evidence.”

Each respondent responded orally and then the officer requested :

“Would you please write down the words you had just told me.”

Each respondent then wrote down what they had said earlier and signed on the charge sheet.

15. The magistrate ruled both the oral admissions and the written replies inadmissible.  These were his reasons :

“	22.	I held that PW8 was in a position of authority. He had made no effort to inform the respondents that they were not obliged to write down the reply on the charge sheet; he had made no effort to enquire of the respondents whether they were willing to write down those replies; he had made no effort to inform the person being charged that the charge sheet itself as well as the oral reply would become evidence; he had made no effort to tell the person being charged that he would be required to write down the reply to the charge after having given it and he made no effort to enquire of the person being charged whether that person accepted the accuracy of what he had been required to write down. I ruled that the conduct of PW8, by telling the persons being charged that they had to write down their answers, negated the effect that the oral caution or cautions may have had at the beginning of the charging process.
	23.	In the circumstances, I held that the prosecution had not proved to the criminal standard that the words written by each respondent on his respective charge sheet were voluntarily spoken by each of them and subsequently voluntarily written on the charge sheet by each of them. I therefore ruled the oral submissions and the actual charge sheets to be inadmissible.”

16. The procedures when a person is charged with or informed that he may be prosecuted is governed by Rule III of the rules.  Rule III(a) reads :

“	Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms :
	‘	Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.’”

The words are the same as the printed caution at the bottom of the charge sheet.

17. There was no dispute at the trial that the officer did administer the caution in the prescribed form when the respondents were charged.  In the event that the person charged elected to make a statement as in the present case Rule III(c) further provides :

“When such a person is being questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as practicable, of the time and place at which any questioning or statement began and ended and of the persons present.”

18. If one compares with the rules governing to taking of written statements under Rules IV and V, the provisions under Rule III(c) is in much less detail.  In the magistrate’s reasons for excluding the written replies, it appeared that he had taken the view that the charging officer has the following duties in addition to those required of him under Rule III.  The additional duties, as were apparent for the magistrate’s reasons, would have required the officer to :

(i)	inform the suspect that he was not obliged to write down the reply;
(ii)	enquire from the suspect whether he was willing to write down the reply;
(iii)	inform the person being charged that the oral reply and what was being written down on the charge sheet would become evidence against him;
(iv)	that he would be required to write down the reply on the charge sheet; and
(v)	that having written it down he would have to be asked to confirm the accuracy of the contents.

19. The failure to perform any of the above, the magistrate said, had negated the effect of the caution which had been administered previously because the invitation by the charging officer to the respondents to write down what they said previously had the effect of precluding the respondents in choosing not to write down what was said earlier.  In making the observation as he did, it was likely that the magistrate took the view that Rule IV(b) was applicable to the charging procedures.  The Rule reads :

“Any person writing his own statement shall be allowed to do so without prompting as distinct from indicating to him what matters are material.”

20. With respect to the magistrate, had this been the intention of those drafting the rules, the detailed requirements appearing under Rules IV and V would have also appeared in under Rule III as well.  The fact remains there are no such requirements under Rule III.  The approach adopted by the magistrate was that he found the conduct of the charging officer, in not giving the respondents an informed choice, was in breach of non-existent duties implied by him into Rule III.  The reasons of the magistrate in excluding the oral and written replies must necessary be erroneous as they were based on alleged breaches of non-existent duties under Rule III.

21. The answer to the first question stated is “no”. 

Question 3

22. At this stage I think it would be more convenient to deal with the third question stated which is directed at the conduct of the interviewing officers in showing a video tape to a suspect during the interview and the suspect was asked to comment on the contents of the tape.  The question stated reads :

“	Whether I was correct in holding that the conduct of an interviewing officer in showing to a suspect during an interview under caution an incriminating piece of evidence in the form of a video tape was analogous to a breach of Rule VI of the Rules and Directions for the Questioning of Suspects and the Taking of Statements so that :
	(a)	the interviewing officer should have played to the interviewee the tape in its entirety, or its relevant parts, before asking him questions as to what was shown on it or to ascertain his reactions to it; and
	(b)	by questioning the interviewee on selected parts of that tape whilst it was being played so as to elicit from him what was, in effect, a running commentary on the tape could, by itself, amount to oppression.”

23. It transpired from the evidence that when the respondents were interviewed by the ICAC officers, a video tape containing incriminating evidence was played to the respondents and they were questioned by the officers while the tape was being played.

24. It was not in dispute that the entire footage of the video covering some four hours was not shown to the respondents.  Only some 40 minutes of the tape was played in the course of which a respondent was asked from time to time to identify particular persons appearing therein.  The magistrate found that a large part of each respondent’s interview was a running commentary by that respondent on the ICAC video tape.  The questions asked and the comments and answers that were given were directed at the activities of other persons rather than at the particular respondent’s alleged involvement.  At no stage did the officer inform the respondents that, after they had had a chance to view the tape or the relevant portion thereof, they would be questioned on the contents of this tape.

25. The magistrate found that the ICAC surveillance video tape had the same status as a record of interview of those persons who were arrested in connection with the offences which the respondents faced.  He was of the view that as such, the position of the video tape was covered by Rule VI of the Rules which provides :

“If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence, a police office wishes to bring to the notice of that person any written statement made by, or record of an interview with another person, who in respect of the same offence has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of such written statement or record of interview, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by Rule III(a).”

26. The above rule covers the situation after a person has been charged with or has been informed that he may be prosecuted for an offence.  The respondents in the present case had not been charged or had been informed that they might be prosecuted for an offence.  When the video tape was shown to them, they were still being investigated for possible offences.

27. In HKSAR v. Cheung Kwok Chung, CACC151/2003, the court had to consider the purpose behind Rule VI.  Stuart-Moore VP, after considering a similar issue on an alleged breach of the Rule, gave the judgment of the court and said :                                        

“… Rule VI is aimed at situations where the investigating authority has either charged the suspect or informed him that he may be prosecuted, where matters have progressed beyond the investigatory stage.  Here, the ICAC investigators were still seeking the truth. …”

28. In the present case, there is nothing to suggest that the ICAC officers had progressed beyond the investigatory stage when the interview was conducted.  The investigation was still at the stage where it was covered by Rule I of the Rules which provides :

“When a police officer is trying to discover whether, or by whom, an offence had been committed he is entitled to question any person, whether suspected or not, whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.”

29. Nothing in the Rules prohibits an interviewing officer, in a cautioned interview, to show a suspect a piece of evidence, real or documentary and to ask him questions about it in the course of investigating a crime. 

30. The magistrate had fallen into error when he said at paragraph 31 of the Amended Case Stated that he held the ICAC surveillance video tape had the same status as records of interviews by other arrested persons for the purpose of the alternative proceedings.  The tape was not a record of interview of other arrested persons but a visual record of the activities at the scene.

31. As to the magistrate’s criticism that the respondents were not told that they would be asked question about the contents of the tape, it should be noted that the each respondent had been cautioned and was reminded of his rights at the commencement of the interview.  It was open to each respondent to exercise his rights at any point during the interview and refuse to answer any question put to him.  If for any reason they had not been able to see the images clearly or that a question put to them by the officer was unclear, they could have asked for the tape to be re-played or for the questions to be clarified or repeated.  No such requests had been made.  If the magistrate’s approach was correct, the respondents would have to be cautioned or reminded of his rights each time incriminating evidence appeared on the video tape.  This cannot be right for it would disrupt the smooth flow of the interview.

32. One must not lose sight of the fact that there is the safe guard at the end of each interview when an interviewee would be asked if there is any amendment, addition or alternation he wished to make.  Again in the present case, no such request from any respondent had been made.

33. The premises based upon which the magistrate excluded the cautioned video interviews was erroneous.  He found there had been a breach of Rule VI which in fact there was none.

34. My answer to the third question posed is “no”.

Question 2

35. The second question relates to the finding of oppression notwithstanding it was never raised as an objection by the defence is closely related to the manner in which the respondents were interviewed by the ICAC officers.  It reads :

“Whether I was correct in finding there to be oppression in the course of the interviews notwithstanding that it was never raised by any of the respondents as a ground of objection to the admissibility of the records of interview and no evidence was adduced from the Respondents asserting it.”

36. Although counsel for the 3^rd respondent had indicated to the magistrate that the admissibility of the record of the first cautioned interview was not challenged, the magistrate revisited this issue.  He held that the prosecution failed to discharge the burden of proving that the interview was conducted voluntarily and under circumstances which was free from oppression.  He ruled the first record of interview also inadmissible.  These were the magistrate’s reasons :

“… However, the third respondent had remained in custody after the first interview and was only released from custody after the second interview.  Accordingly, the prosecution had the burden of proving that matters that preceded the second interview had not tainted the second interview.  In other words, the burden lay with the prosecution to prove to the criminal standard that the first interview had had no effect upon the voluntary nature of the second interview.  Indeed, in my judgment, the prosecution always has the positive burden of proving that admissions are of a voluntary nature even in circumstances where no formal challenge has been mounted by a defendant.  In the light of my findings concerning the first interview I held that the prosecution had not discharged that burden.”

37. His reasons appeared to be that since the second interview as well as the interview of the other respondents were obtained under oppressive circumstances, what preceded the second interview in the case of the 3^rd respondent must also have been taken under oppressive circumstances.  The prosecution failed in their attempt to prove that they were not.

38. I am, however, unable to appreciate the logic behind this line of thinking.  The 3^rd respondent was represented by experienced counsel at the trial who had indicated in no uncertain terms that the admissibility of the first video interview was not in issue.  It was therefore not incumbent upon the magistrate to fine-comb the Rules and to come up with what might be perceived as conduct which amounted to breaches of the provisions where in fact there was none.  His reasoning for excluding the verbal and written answers to the charge as well as the other caution interviews were flawed for the reasons which I have stated earlier.  Nothing which transpired in the course of the trial can be taken as the interviewing officers applying continued and increasing pressure on any of the respondents or that they were in breach of the Rules.

39. The answer to the second question posed is “no”.