HKSAR v. WONG KWOK HANG, TOMMY

DCCC 1155/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1155 OF 2013

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Reasons for Verdict

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1.  The defendant has been charged with two offences: Charge 1, being a tenant permitting premises to be used for unlawful trafficking in a dangerous drug, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars are that between 1 August 2013 and 23 August 2013, as the tenant of the material premises, Flat B, 2nd Floor, 28 Waterloo Road, the defendant permitted the said flat to be used for unlawful trafficking in a dangerous drug, namely, “Ice.”

3.  The 2nd charge was a conspiracy to traffic in a dangerous drug, contrary to section 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap 134, as well as section 159A of the Crimes Ordinance, Cap 200. 

4.  The particulars are that between 8 August and 18 August 2013, the defendant conspired with a female, Tsang Ka‑man, to unlawfully traffic in a dangerous drug, namely, “Ice.”

5.  The defendant, Tsang Ka‑man, and a third person were arrested by the police in the defendant’s home on 23 August 2013.  Police found a bag of “Ice,” numerous bags of pills, dangerous drugs as well as paraphernalia associated with packing dangerous drugs.  The defendant was arrested for trafficking all the items.  After his arrest, he made two video‑recorded interviews that contained many admissions. He admitted he knew and saw Tsang deal with “Ice” for the purpose of unlawful trafficking in the flat (Charge 1) and that he assisted her on several occasions to give or deliver her dangerous drugs to others and collect money for the drugs on her behalf (Charge 2).   

6.  The defendant was not ultimately charged in relation to the actual drugs found in his flat on 23 August nor the paraphernalia.  Tsang was charged and dealt with in separate proceedings.  The third male was not charged.

7.  The prosecution relied on the admissions made in the two video-recorded interviews to prove beyond reasonable doubt the defendant committed both offences.  The two video-recorded interviews, verbal responses under caution and the post-recorded statements were challenged.

8.  The issue was the voluntariness of the above and the credibility of the officers involved in the raid, subsequent search, arrest and the records made under caution.

9.  The challenge was dealt with procedurally by way of a voir dire before the general issue was dealt with.  Ultimately, the prosecution was able to prove beyond reasonable doubt the defendant did respond voluntarily after a caution was administered at the scene twice.  I found also the post-recorded statements and the subsequent two video-recorded interviews were also made voluntarily.

The Prosecution’s case

10.  The police targeted the defendant’s flat and had a search warrant.  It was not produced as an exhibit.  The police team lay in hiding in the stairwell and staircase in front of the flat for about 45 minutes when at 2.45 am defendant opened the flat door from the inside.  PW3, DPC33232, rushed up to the door and revealed his identity to the defendant.  His superior was behind him with the search warrant and revealed that immediately.  They made their way into the premises.

11.  Inside, the female Tsang Ka-man was seen handing a bag of “Ice” to a third male.  The purity of that bag was 12.09 grammes of “Ice.”  Defendant was arrested by PW1 for trafficking dangerous drugs when the bag was suspected to contain “Ice.”  Under caution, the defendant told PW1 that the “Ice” was not his.  It was Tsang Ka-man who bought it in to divide up for customers, and he asked PW1 not to arrest him.  

12.  The house was searched.  The Exhibits Officer, PW2, found a black plastic bag in a cupboard that contained three transparent bags containing blue pills, zopiclone.  It also contained nine transparent bags of white tablets, zopiclone and 10 tablets of nimetazepam.  In front of the cupboard and next to the bed, the officer also found a small round table upon which he found a small black electronic scale, a bag containing over 100 small transparent resealable plastic bags and lastly a small transparent plastic bag containing a small amount of “Ice” and a straw.  This paraphernalia is commonly associated with packing dangerous drugs into smaller bags for trafficking purposes.   

13.  When these items were found, PW1 arrested the defendant again for trafficking dangerous drugs, this time for those tablets found and the paraphernalia.  Under caution, the defendant denied the offence and said the dangerous drugs, electronic scales and plastic bags were not his. He asked the officer to give him a chance and not arrest him.

14.  Within an hour or so, PW1 made a post-recorded statement in his notebook whilst still at the scene (Exhibit P2 and 2A, the translation).  He recorded the responses of the defendant after caution, and the defendant signed and confirmed the record was accurate.

15.  Exhibit P16 is a photograph album of the flat, its interior and the paraphernalia as well as the drugs found, but there is no photograph of the bag of “Ice” found.  PW1 said he sat on the sofa as seen in Photograph 3 just outside the front door to write in his notebook, and the defendant sat on a stool in the doorway.  The door was open at all times.

16.  Later, at the police station, PW1 conducted a video‑recorded interview with the defendant.  PW2 accompanied PW1 during the course of the interview.

17.  During this interview, the defendant admitted he had rented the premises for seven years.  Tsang had lived there since 1 August 2013 and was his friend’s girlfriend who was homeless at the time.  He said that all the dangerous drugs found in the premises belonged to her.  He knew she trafficked the dangerous drugs.  He knew she packed and cut “Ice” into smaller packets in the premises.  He had seen her use the paraphernalia found on the table to divide up and pack the “Ice” on top of the table.

18.  She would hand the packets of “Ice” to people who came up to the premises.  He saw her do this and collect payment.  She used a small cupboard next to the table to keep her personal things the defendant was not allowed to touch.

19.  He saw her bring home that evening a black plastic bag which the police found in the cupboard during a search he witnessed.  He saw that the bag contained many small bags of pills, some blue, some white and some wrapped in foil.  He had seen her on previous occasions share pills with friends who came to their premises.  He told the police that all the paraphernalia on the table belonged to Tsang.

20.  He explained that on several occasions, she had asked him to pass packets of tissue containing “Ice” to her friends and sometimes collect money in return.

21.  In addition, he told PW1 that after Tsang used the straw instead of her hands to handle the granules of “Ice” to repack it into small packages, she would ask him to tidy up the table after her.  Between Counters 515 and 549 of Exhibit P4A and B, he told PW1 that if one touched “Ice” granules and did not wash one’s hands, the drug being poisonous would cause “Ice” abscesses to form on one’s hands.  He actually showed PW1 his hands during the video-recorded interview and pointed out that his right hand had less “Ice” abscesses than his left hand.  He said he had come into contact with the “Ice” on the table when he tidied up at her request.

22.  In his second video-recorded interview, he clarified the previous admission that he had assisted Tsang to deliver packets of “Ice.”  He delivered four or five times.  The first time was on 8 August 2013, and then he went on to describe four occasions.  He said the dates were between 8 August and 17 or 18 August.

23.  The prosecution rely on the defendant’s admission that he was the tenant which was supported by a tenancy agreement and some rental receipts.  They also rely on his admission that he watched her or witnessed her packing “Ice” and giving it or selling it to people that came to the premises.  He had full knowledge she was using the premises for drug trafficking.  The prosecution rely on this evidence to prove Charge 1.

24.  Furthermore, the prosecution rely on the admission he at her request delivered the drugs or passed over her drugs to others to prove the defendant conspired with Tsang to unlawfully traffic in dangerous drugs, “Ice”; hence, 2nd charge. 

The Defence Case

25.  The defence case is straightforward.  The defendant did not reply under caution as recorded in the post-recorded statement.  He signed the notebook without knowing its contents at the officer’s request.

26.  Then he was coached as to what to say in the two video-recorded interviews, and he made up some of his evidence because he thought that is what PW1 wanted to hear.

27.  The police broke into his home.  He did not know that Tsang had any dangerous drugs in his house nor did he know or see her deal with or traffic any dangerous drugs.  He did not witness the search made by the police nor had he ever seen the paraphernalia found.  He certainly did not deliver or receive any money for delivering dangerous drugs at Tsang’s request.

The Voir Dire

28.  Exhibit D1 is the written grounds of objection to the admissibility of the verbal admissions, post-recorded statement and the two video-recorded interviews against interest.

29.  It sets out in essence the police prised open defendant’s door and forced their way in without notice.  The defendant was immediately assaulted and handcuffed.

30.  After drugs were found inside the premises, the defendant denied all knowledge of their existence or ownership.

31.  Subsequently, he was taken to the stairwell by PW1 and 3.  PW3 disabled a CCTV camera outside an apartment opposite to the defendant’s which pointed towards the stairwell and then hit the defendant twice.  PW1 told the defendant - and I quote from paragraph 3 of Exhibit D1 - “they were only able to help the defendant if he gave answers conforming to what he was asked.”

32.  Before they arrived at the station, some time later, PW1 again told the defendant what to say in his video-recorded interview later.  PW1 promised the defendant he would ask his superior to release the defendant if he co-operated with the police.

33.  It was alleged the defendant was assaulted, threatened and induced at the scene by the police officers.

34.  Exhibit P2 is the notebook where PW1 recorded the defendant’s replies after caution.  As I have said, it was post‑recorded at the scene.  Defendant denied saying what was recorded.  PW1 made up the contents and told the defendant where to sign.  The defendant had no idea of its contents when he signed.

35.  In Exhibit D1, the defence allege the defendant was coached prior to the first video-recorded interview.  In paragraph 7(1-3), the defence set out what the defendant was coached to say and what was said to him.  He was threatened and induced.

36.  In Exhibit D1, the defence allege the defendant was hungry and tired during the course of the two video-recorded interviews and therefore unfit to endure interviews.

37.  The defendant made up some of his answers in the two records to please PW1.

38.  The prosecution called five police officers. PW4 and PW5 were both station sergeants on duty at the relevant time, that being from the defendant’s arrival at the station and up to after the second video-recorded interview.  They established the defendant had no visible injuries, had no complaints to make, was given breakfast as normal and did not request extra food.  One said any detained person can request water at any time and it would be supplied. 

39.  PW1 gave evidence of how he gained entry to the defendant’s flat and under what circumstances he arrested and cautioned the defendant twice for trafficking dangerous drugs.  He explained how and where he post-recorded the replies by the defendant made under caution.  He described how he only handcuffed the defendant when they left the building to travel back to the police station.  He goes on to describe the procedure he adopted from arriving at the Report Room to signing the defendant out from the Duty Officer to record the first video‑recorded interview. 

40.  When he signed the defendant out, the defendant requested the use of a toilet.  PW1 took him to the toilet before taking him to the recording room.  He served a second POL153 on the defendant (Exhibit P3). The first POL153, a Notice to Persons in Custody, had been served and signed by the defendant at the scene before he recorded the post-recorded statement in his notebook, and it is Exhibit P1.  After the defendant signed Exhibit P3, the second POL153, PW1 began the interview with PW2 in the room with him.

41.  Exhibit P4 is the disc of the first interview, 4A the transcript and 4B the certified translation of the transcript.  It ran between 8.39 am and 9.53 am.

42.  PW1 denies he coached the defendant before the interview started just as he denied making up the contents of the post-recorded statement.

43.  He repeats both arrests and the defendant’s replies under caution in the first video-recorded interview at Counter 63 and 233 respectively of P4A and B.  He said he wanted to ask what Tsang had done with the bag of “Ice” and drugs, what would she do with it and what had she done with it in the past.  All questions arose from the arrest and the drugs and tools found during the arrest as well as the defendant’s statement that all the illegal substances belonged to Tsang and not him. 

44.  At Counter 445 of P4A and B, the defendant says Tsang sometimes asked him to give drugs to her friends.  He then thereafter expands on how he helped her or assisted her to give out or deliver drugs.  It was put to PW1 in cross-examination at this stage he should have cautioned the defendant again as he confessed to trafficking drugs.

45.  Defence counsel quoted Rule 2 of the Rules and Directions for the Questioning of Suspects and Taking of Statements.  It says:

“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.”

46.  PW1 agreed he did not caution the defendant again after Counter 455.  He was of the view that he had reminded the defendant of his rights already in the video-recorded interview.  He went on to say that if “we refer to Rule 2, then there is some discrepancy.  But I thought he was speaking smoothly and voluntarily admitted.”

47.  PW1 conducted a second interview not long after the first to clarify further what the defendant had said in the first video-recorded interview.  He says at Counter 29 of Exhibit 6B and C that he needed “to clarify what you were asked about the details of the two cases of trafficking in a dangerous drug, for which you were arrested this morning.”  At Counter 31, he cautioned the defendant again and the defendant replied that he understood.  It was put to PW1 that this interview covered events in the past, that did not concern the dangerous drugs uncovered on 23 August, and he answered he thought the content of the video-recorded interview related to the two cases and reiterated that he had cautioned him again.

48.  PW1 added “it seems I may have breached Rule 2 but I tried my best to protect his rights.”

49.  PW1 denied all allegations of impropriety put to him.  He did not assault, threaten, induce, coerce or oppress the defendant. Nor did he fabricate the defendant’s verbal admission or the contents of the post-recorded statement.

50.  PW1 was not shaken in his evidence nor did his evidence contradict his own or other prosecution witness’ evidence.

51.  PW2 was the Exhibits Officer who denied the police crowbar opened the front door to gain access.  He heard DPC33232, PW3, say in the corridor that someone has opened door, and then he saw PW3 rush up to the door.  PW2 followed him.  His evidence was not contradicted by other prosecution witnesses.

52.  PW3, DPC33232, described how they gained entry when the defendant opened the door at about 2.05 am.  He saw a female in the flat pass a bag to a third man, not the defendant.  He grabbed it immediately. He arrested that third man for trafficking dangerous drugs and cautioned him. That third man was PW3’s responsibility.

53.  PW3 denied the police or he crowbar opened the door.  When he got to the opened door, the defendant tried to shut it again but he pushed it open.  He denied he pressed the defendant to the ground and assaulted him.  He denied pulling out a wire of a CCTV camera next-door as he denied he and PW1 took the defendant to a stairwell to question.  He denied he induced, assaulted the defendant nor did he hear PW1 coach him.  PW3’s evidence again supported PW1 and PW2’s evidence as theirs supported his.  He too was not evasive or shaken in cross-examination.

54.  Defendant elected to give evidence and was a poor witness.  He describes the forced entry, damaged door and locks, the assaults and denial by him of any knowledge of the black bag of dangerous drugs or any drugs or paraphernalia. 

55.  Photographs in album P16 show no evidence of a crowbar having prised open the door as he described.

56.  He says PW1 and PW3 taught him to blame the female Tsang and say all the items belonged to her even though they both lived in the same premises.

57.  He signed PW1’s notebook without any idea of its contents.  He describes how before he got into a police vehicle, PW1 coached him to blame Tsang entirely to save himself.  Oddly, he was not required to confess to any crime.  He was only arrested because he was the tenant, he was told.

58.  At the police station, before the first video-recorded interview, PW1 took him to the toilet to coach him again.  Again there was oddly no suggestion he had to admit to any offence.

59.  There was a gap between the first and the second interview, and the defendant tried to delay the second interview because he was tired and hungry.  PW1 insisted that he attend the second video-recorded interview and he had to co-operate before food would be arranged for him.  He believed the officer PW1 would help him as promised, speak to his superior to get him released without charge.

60.  It was put to the defendant he was cautioned at the beginning of the video-recorded interview but he said he did not really understand what it meant even though at Counter 61 and 62 he said he understood.  He said that PW1 did not tell him he had a right to silence and he did not have a choice whether to say anything or not.  He said if he had had a choice, he would have gone to sleep.

61.  It was put to him he confirmed the accuracy of the post-recorded statement at Counters 63 and 64 as well as 233 and 234.  He said of Counter 64 he did not know why the transcript said that he had said “Agreed.” Defendant agrees he then goes on to explain what he said under caution at the scene, but what he said he was coached to say or he made it up. 

62.  Of Counter 233 and 234, he said when it was repeated to him that PW1 did not say that.  When he was reminded it was a transcript of a video-recorded interview he was being referred to, he clumsily corrected himself and said maybe he misunderstood what PW1 had asked him.  This was the first occasion of several where the defendant forgot the interview was videoed.  He thought he was being referred to a written interview.  On three other occasions, he said to explain away his admissions that either PW1 did not write down accurately what the defendant had said during the interview or he, PW1, made it up as the defendant did not say it.  He was reminded repeatedly that the record was a transcript of an interview and it was accurate.  It indicated he was not telling the truth in the witness-box.

63.  It was put to him he was clearly cautioned for offences relating to drugs found in his home and the tools used for packing dangerous drugs found on a table.  He flatly denied that he understood this caution.  He said that PW1 was only telling him what was seized.  Defendant by the end of the cross-examination denied he knew he had been arrested for trafficking dangerous drugs twice.

64.  Yet earlier he had said he knew why he had been arrested but he did not understand the caution.  He then goes on to say he did not know that he would be charged.  He thought he was being lectured by the police and that PW1 was telling him off, teaching him a lesson verbally.

65.  It was put to him that he admitted voluntarily giving Tsang drugs to her friends as directed.  He then denied that he had given the drugs to anyone but that they fetched the drugs themselves.

66.  The defendant said he knew and understood that when he said he passed drugs to others for the female and collected money, he was helping her to traffic drugs.  He said PW1 did not tell him to say this but that he had made it up himself.

67.  He did say that PW1 told him to say that the money was put on the bed and that he never physically passed drugs to anyone so he would not be connected to the drugs sale and exchange.  When asked why he did not say this in the interview if he was taught to say this, he replied he did say it but he did not know why PW1 did not write it down.  Another lie exposed.  

68.  When his discrepancies in evidence were highlighted, he tried then to say that he had no idea what he had said and does not recall what he said because of his state of mind at the time.  He may have been confused after being assaulted by the police.

69.  He admits he showed PW1 his hands during the interview but not to point out “Ice” abscesses he had developed because he helped the female clean up “Ice” from the table.  He said he had told PW1 that he got his injuries to his hands from paint thinner he used whilst working in the decoration business.  He went on to say he did not know why PW1 did not write down this explanation in the interview when he clearly had said it.  A further lie exposed.

70.  As for the POL153, notice to suspects in custody, he had no recollection of when he signed the first one, P1, which states the time as 4 am.  For Exhibit P3, the second POL153, he recollects signing this just before the first video-recorded interview commenced; and P5, the third POL153, he thinks he signed just after, not before the second video-recorded interview finished.  He did not know its contents nor his rights.

71.  The defendant’s evidence was nonsensical, evasive and clearly lies.  He tried to suggest PW1 acted improperly but in fact his evidence was so poor he tripped himself up.  I rejected his evidence without hesitation.  It was far from reality.

72.  On the other hand, I was sure PW1, 2 and 3 were telling the truth.  There were no material discrepancies in their evidence and they supported each other without a hint of fabrication or impropriety.

73.  Defendant’s replies under caution at the scene were naturally self-serving, defensive and denials in nature, which is why I am sure they came from the defendant voluntarily and were not made up by PW1.

74.  As I am sure he did reply under caution and reply voluntarily, I also found he signed a POL153 before PW1 made a post-recorded statement.  I am sure he wrote a declaration at the end of that statement confirming he had read it, it was the truth and it was made of his own free will, meaning it was not involuntary.  

75.  Having heard the evidence of PW1, 2, 3 and the defendant as well as watching the two video-recorded interviews in court, I reject the allegation the defendant was coached to give evidence in the interviews.  He said some answers came from PW1, some he made up even though he knew he was implicating himself, and some were wrongly recorded down by PW1 or omitted by PW1.  Of the last two scenarios, we know that it was impossible, being a video-recorded interview, not a written statement.  I am sure the prosecution proved beyond reasonable doubt both the video-recorded interviews and the post-recorded statements were made voluntarily.

76.  Despite this, I had to consider if for any other reason I should exercise my discretion to exclude any admission.

77.  The defence submitted a breach of Rule 2 means part of the first interview and the second video-recorded interview should be edited and excluded respectively.

78.  Defence submitted PW1 should have cautioned him again after the defendant admitted he helped Tsang give out dangerous drugs and collect money on her behalf.  It was suggested the defendant went to a wholly new area and should have been cautioned again under Rule 2.

79.  Defence counsel referred to an authority, HKSAR v Pang Ho Yin CACC 264 of 2009 and submitted it was highly relevant to this defendant.  In that case, the appeal was allowed and it was held there had been a breach of Rule 2.  The trial judge should have exercised his discretion and excluded the subsequent confession.

80.  That appellant had been arrested for, amongst other offences, possession of an imitation handgun.  When he was cautioned for this offence, he then went on to explain his reasons for possessing it and revealed drug-trafficking activity in doing so.  He was not then cautioned again.  The Court of Appeal said he ought to have been cautioned anew since the interview led to an offence of significantly greater gravity than those to which he had already admitted.

81.  In that case, that appellant had given evidence, and at paragraph 35 of that authority, Court of Appeal said:

“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.”

82.  The Court of Appeal comment that the appellant gave an explanation for one offence but it led into new territory altogether, and it was this territory that the police investigated further with questions that followed.  They did this without alerting the appellant to the fact that he was now suspected of a much more serious offence.  The failure to caution was not therefore a mere technical failure.

83.  The court analysed the consequences in these circumstances of a failure to caution again.  They were of a view that the trial judge failed to address the question of whether the appellant was still aware of his right to silence and of his right to choose whether or not to speak once the focus of the investigation changed.

84.  In Pang Ho Yin, the appellant relied upon an English authority, R v Kirk [2001] WLR 567.  In that case, the defendant was questioned about snatching a bag from an elderly lady.  She died as a result of the circumstances arising from the theft but when interviewed, the defendant was not told she had died and was at risk of being charged with manslaughter or robbery.  He was tried for both charges, and the Court of Appeal held that the trial judge wrongly admitted admissions made in ignorance of the victim’s demise.

85.  The Court of Appeal in Pang Ho Yin said - and I quote paragraph 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 at page 572.”

And that is then quoted:

“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.”

86.  In both Kirk and Pang Ho Yin, the Court of Appeal allowed the appeals.  Defence counsel, Mr Ng, submitted these authorities strongly support his submission.

87.  Another authority referred to was HKSAR v Tang Chi Ho [2013] HKCU 2131.  The facts were that the appellant in that case had led the police to a carspace where the police found dangerous drugs and paraphernalia to pack drugs.  Under caution, he said a friend said he had put something in his garage and would pay him $2,000.  That appellant said he did not know what the stuff was.  In that case, the appellant said the police officer fabricated this reply under caution.  He was not arrested for trafficking the drugs but possession only.  It was argued because of this he was not properly apprised of his right to silence.

88.  The Court of Appeal did not agree and was satisfied that the appellant must have known that the amount of dangerous drugs in respect of which he was arrested at the car park was wholly different in quantity and seriousness.  He did not go into a wholly new area like Pang Ho Yin.  He was well aware of the true nature of the investigation against him. 

89.  Mr Beel for the prosecution in this case submitted the defendant had been cautioned at the scene before each reply as well as in each video-recorded interview.  He knew of his right and exercised an informed choice and spoke to the police.  He knew of the peril he faced, he was aware his admissions implicated him in trafficking drugs and he, despite his denial, was well aware he had been arrested for trafficking drugs twice. The second arrest concerned drugs and specifically paraphernalia related to packing drugs.  His explanation arose from the facts of the case and had a direct and strong nexus to the charges for which he had been arrested.  There was no new area nor was he admitting anything that would have led to a much more serious offence than the one for which he had been arrested.

90.  Mr Beel submitted that if there should have been a need to caution the defendant again, it was only a technical breach of Rule 2.  If there was a breach of Rule 2, the defendant’s right to a fair trial had not been adversely affected.  He was well aware and made aware of his right to silence and was well aware of the true nature of the investigation.

91.  After careful consideration of the submissions, I found that the facts in this case could be distinguished from the circumstances of the admissions made in both the authorities of Kirk and Pang Ho Yin.  I agree with the submissions of the prosecution.

92.  Defendant confirmed orally he knew and understood a caution and knew he was under arrest for trafficking “Ice,” other drugs and that the arrest included the paraphernalia found.  His admissions came from an attempt to explain his position and the use of the tools found in his house by Tsang.  More importantly, I did not find his right to a fair trial affected by a failure to caution him afresh.  I am sure his awareness of his right to silence remained an informed choice.  The focus of the investigation and questions in the interview did not change like it changed in Pang Ho Yin. He was referred to the drugs and tools found in his home, the subject of his arrests, and what he said flowed from that and them directly.

93.  To conclude, I rejected the defendant’s allegation that if the defendant made admissions under caution as alleged, he did not do so voluntarily.  I rejected the defendant’s challenge to the voluntariness of the oral admissions, post-recorded statement and both video-recorded interviews.  I was sure the prosecution were able to prove beyond reasonable doubt they were all made voluntarily.

94.  I found there were no grounds upon which I should exercise my discretion to exclude the records. I, having considered Rule 2 of the 1992 Rules and Directions on the Questioning of Suspects, the facts of this case, including the reasons for arrests and the contents of the two interviews and the authorities referred to in submissions, found it not to have been necessary for PW1 to caution the defendant again during the course of the first video-recorded interview.

95.  However, even if I am mistaken, I am sure the defendant was well aware of the nature of the arrests, the investigation that followed and his right to choose whether to speak or not when he chose to give an explanation in the video-recorded interview.  His right to a fair trial was not adversely affected because there was not a further caution.  If I am mistaken, it was a technical breach of Rule 2.

The Law

Charge 1

96.  There is no dispute the defendant is the tenant of the material premises.  There is no dispute a bag of “Ice” of purity of 12.09 grammes and paraphernalia to pack drugs were found on the premises. Prosecution rely on the defendant’s admission in his video-recorded interview and post-recorded statement to prove he knew that Tsang was unlawfully trafficking in “Ice” in his premises and that he permitted this to take place there.  Those are, in essence, the elements of the charge to be proved.

Charge 2 - Conspiracy to Traffic Dangerous Drugs

97.  Prosecution must prove the defendant and Tsang Ka-man conspired to unlawfully traffic “Ice.”  To prove a conspiracy, there must be an agreement by the two accused to perform an unlawful act. 

98.  The actus reus is the agreement itself, and the mens rea must be the intention to be a party to an agreement to do an unlawful act.

99.  Prosecution rely on the defendant’s admissions to prove they acted together to sell dangerous drugs.  The defendant admitted that Tsang packed the dangerous drugs, and on several occasions at her request, he delivered “Ice” and collected money for it on her behalf.  Those are the elements of that charge.

100.  Prosecution must prove all elements beyond reasonable doubt.  The defendant has no duty to prove anything whatsoever.

My Findings

101.  I have considered carefully the prosecution’ evidence and having admitted the records of interviews and the post-recorded statement into evidence, the case against the defendant is insurmountable. What he admitted to the officer is a full confession of both charges.  I rejected his evidence in its entirety.  The police officers I found credible and reliable.

102.  By his own admission, he confessed to permitting Tsang to bring into his home he rented drugs which she packed for the purposes of unlawful trafficking.  He witnessed customers coming to buy drugs in his premises.

103.  In addition, the physical evidence found in the premises and the location of the items used to pack drugs found on the table out in the open supports the 1st charge.

104.  I am sure prosecution can prove this charge, the 1st charge, beyond reasonable doubt.

105.  I am sure, where Charge 2 is concerned, the prosecution has also proved this beyond reasonable doubt.  They can rely on his admissions made in both video-recorded interviews.  He agreed he delivered drugs on her behalf on at least four occasions and collected the money at times.  He knew what he was delivering was “Ice” concealed in tissue.

106.  Both charges have been proved beyond reasonable doubt and accordingly I convict the defendant as charged.