HKSAR v. LAU SAI KI

[English Translation – 英譯本]

CACC 74/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 74 OF 1998

(ON APPEAL FROM DCCC NO. 1049 OF 1997)

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JUDGMENT

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Hon Chan CJHC (delivering the judgment of the Court):

1. On 23 April 1999, after hearing submissions from both parties, we allowed the Applicant’s appeal.  We now hand down our judgment as follows.

2. The Applicant, who was the 1^st defendant at trial, and two other defendants were charged with two offences, namely conspiracy to rob (contrary to Section 10 of the Theft Ordinance (Cap. 210) and Section 159A of the Crimes Ordinance (Cap. 200)) and possessing offensive weapon in a public place (contrary to Section 31(1) of the Public Order Ordinance (Cap. 245)).  After trial in the District Court, the Applicant was convicted of both offences and sentenced to imprisonment for 4½ years and 9 months respectively, with the two sentences to run concurrently.  The Applicant now applies for leave to appeal against both conviction and sentence.

3. The prosecution case was that, on 11 August 1997, having received reports from informers, the police conducted surveillance on the Applicant and others.  At about 09.00, the police saw the 2^nd defendant (D2) getting into a private car driven by the Applicant.  The 3^rd defendant (D3) was also inside the car at that time, sitting beside the driver.  The police then followed the car.  After a short while, the car stopped near Maple Street in Kowloon.  D3 left the car and later returned, carrying a plastic bag.  The Applicant alighted and opened the boot.  D3 then placed the plastic bag inside the boot.  He and the Applicant then got into the car and drove away.  The police kept close surveillance on the car.  Later, the car stopped near Wing Ming Street.  D2 and D3 left the car and returned after a few minutes.  They got into the car, which then left.  At about 10.42, the Applicant parked the car at a carpark in Castle Peak Road.  He, D2 and D3 then left the car and went to a VIP area on the second floor of Treasure Restaurant in Fuk Wing Street.  At about 11.55, a team of more than 10 police officers arrived at that VIP area and made arrests.

4. According to evidence from the police, the inspector leading the team went near the table at which the Applicant and others were sitting.  The inspector gave a signal, upon which a police officer (PW5) immediately arrested the Applicant.  There was some struggle between the two of them, but in the end the Applicant was arrested and cautioned by PW5 and another police officer (PW6).  The other defendants were also arrested.  According to police records and the police officers’ testimony at trial, the Applicant and the other two defendants were taken to Cheung Sha Wan Police Station at 12.40.  After approximately two hours, at 14.47, the Applicant was taken to the car that he parked at the carpark earlier on.  The police conducted a search of the car.  At 15.18, the police found the aforesaid plastic bag inside the boot, and the bag was found to contain three knives.  At 15.58, the Applicant was taken back to Cheung Sha Wan Police Station, and he was then taken to Kowloon City Police Station.  It was not until 17.20 that the Applicant was taken to Kowloon West Police Headquarters.  During the two periods when he was at Cheung Sha Wan Police Station, the Applicant was questioned by the police for a total of four times, although he did not admit to any charge against him under caution.

5. At 17.30 on the same day, the Applicant agreed to a videotaped interview by the police.  He was immediately taken to Kowloon West Police Headquarters.  However, he had to wait there for almost two hours and it was 19.10 when he entered the recording room.  The first videotaped interview, which took place from 19.20 to 20.09, was conducted by PW5 and PW6.  The second videotaped interview of the Applicant took place the following day, from 19.42 to 20.10.  The police sought to adduce records of these two interviews as evidence.  These two records, which showed that the Applicant had made mention of his discussing a robbery with the other defendants, formed the primary evidence against the Applicant in respect of the two charges.

6. At trial, the Applicant through his counsel objected to the records of interview being adduced as evidence.  The grounds of objection were roughly as follows: while his car was being searched at the carpark, the Applicant was questioned and intimidated by police officers, who uttered statements such as “If (he) does not cooperate by confessing, he will be very well served at the police station.”  At Kowloon West Police Headquarters, before he was questioned, the Applicant was treated with violence: his neck was forcefully grabbed with hands; he was made to put on a headmask; he was made to lie on his back on a table, and then his chest was hit by something similar to an elbow; things similar to books were put on his chest, and he was then hit again; then his private parts were attacked; then a police officer comforted him and requested him to cooperate and follow instructions on how to answer questions; he requested to see a lawyer but was refused; and his request to make a phone call was also declined.  He said that, as a result of similar intimidation and acts of violence, he agreed to a second videotaped interview, during which he answered questions in accordance with instructions from the police.  The Applicant gave evidence in court, disputing the voluntariness of his statements during the interviews which found their way to the records.

7. The prosecution and the defence had agreed to the following facts.  On 14 August, when a government doctor conducted a body check on the Applicant at Lai Chi Kok Detention and Reception Centre, the Applicant complained of having been assaulted by the police on 11 August.  The doctor found some injuries on the Applicant’s person, including scratches on the back of his left hand, bruises on the left side of his neck, and bruises on his abdomen.

8. For the purpose of determining the admissibility of the two records of interview as evidence, the trial judge adopted the alternative procedure over the issue of whether the Applicant voluntarily participated in the two interviews.

9. After considering the evidence of the prosecution and of the Applicant, the trial judge ruled that the Applicant did voluntarily participate in the two interviews and hence the records thereof were admissible as evidence.

10. The aforesaid records of interview were the most crucial evidence in the present case.  In view of this, the trial judge, in her Reasons for Verdict, examined the evidence pertaining to those records and provided reasons for her ruling that what the Applicant said during the interviews were voluntary.  In my judgment, this was a proper approach.  Had the trial judge not explained her rulings on the voluntariness and admissibility of the interview evidence, her Reasons for Verdict would solely have been based on the contents of the records of interview as adduced that was against the Applicant and would have failed to address what was the most important aspect of the verdict.  The trial judge had, therefore, correctly explained why she admitted the records of interview as evidence.

11. The trial judge pointed out that she had noted the evidence of the prosecution witnesses and of the defendant and had observed their demeanour when they were giving evidence.  She had also taken into account the circumstances in which the Applicant was arrested, the circumstances surrounding the two videotaped interviews of the Applicant, his allegations against the police, and the doctor’s report.  She concluded that there was nothing to show that the prosecution witnesses had lied.

12. However, the trial judge gave the following reasons for her decision to admit the records of interview as evidence:

“I consider the two defendants’ cases separately.  Neither of them has any criminal record, and I have directed and warned myself regarding their credibility and propensity to commit crime.  As there are a number of similarities between their evidence, I shall deal with their evidence together.  I now set out those parts of D1’s and D3’s evidence that are untruthful and preposterous: …”

13. The trial judge went on to set out those parts that were in her view preposterous.  The first point related to the Applicant’s and D3’s allegation that, upon arrival at the restaurant, the police officers had pointed their pistols at the Applicant and D3.  The second point concerned D3’s allegation that, when he was arrested at the restaurant, he had made certain requests which were declined.  The third point related to the Applicant’s and D3’s allegation that, prior to the videotaped interviews, police officers had instructed them how to answer questions.  The final point concerned the Applicant’s allegation that he had been assaulted and the circumstances surrounding the Applicant’s body check by the doctor.  The trial judge said that:

“The above are just some of the examples that serve to shatter the defendants’ credibility.   Taken as a whole, there are of course a lot of contradictions [in the defendants’ evidence], and I do not propose to set them out in full.  They will be apparent from the transcript of the hearing and the defendants’ countenance during the interviews as seen in the video recordings.”

14. Counsel for the Applicant submits that the trial judge failed to properly evaluate the relevant evidence (including the medical evidence and the testimony of the police officers and of the Applicant) and, as a result, erred in ruling that the records of the two videotaped interviews could lawfully be admitted as evidence.  Counsel also submits that the trial judge erroneously compared the out-of-court information provided by each of the defendants to the police.

15. In my view, where a trial involves two or more co-defendants, it is the duty of the trial judge not only to meticulously analyse the case of each of the defendants (including the prosecution case against him and his evidence), but also to clearly separate each defendant’s case from all the co-defendants’ cases.  This is so even when the co-defendants are being charged with conspiracy or are being jointly charged with one offence.    Very often, the prosecution evidence against individual defendants may have a lot in common, and so may the evidence of the defendants themselves.  For instance, where the co-defendants were arrested at the same time, the evidence regarding the arrests will probably be almost identical.  However, the police would also have interviewed each of the defendants separately instead of questioning all of them on one single occasion.   At trial, if a number of the co-defendants give evidence in court, one of them may, in the course of giving evidence, use another co-defendant’s evidence as reference.  The fact that one of them is not telling the truth in court does not mean that another of them is also lying.  Furthermore, the written statement of a co-defendant cannot constitute evidence against any other co-defendant.  The court must deal with written statements of individual co-defendants separately.  Even if there are consistencies or contradictions between two written statements, neither of them can be used as evidence against the maker of the other statement.

16. For the above reasons, it is incumbent upon the trial judge to clearly separate the cases regarding individual co-defendants in order to show that the judge is not mixing up the various cases and is not convicting a defendant solely because his co-defendant has been convicted.  Where the trial judge failed in his Reasons for Verdict to separate the cases regarding two co-defendants, doubts will arise as to whether he has dealt with the cases separately even if he has in fact done so in his mind.  Justice must not only be done, but must also be seen to be done.

17. In the passage quoted above, the trial judge made mention of similarities between the Applicant’s case and D3’s case.  From this it can be seen that, although the trial judge declared that she was considering the two defendants’ cases separately, she did not in fact do so.  Of the four points highlighted by the trial judge that she regarded as preposterous, at least the first and third points clearly show that she had dealt with the two defendants’ cases together.

18. Counsel for the prosecution contends that the four points mentioned by the trial judge show that she had separated the Applicant’s case from D3’s case.  However, having looked at the Reasons for Verdict as a whole, we still have doubts about whether the trial judge mixed up the two defendants’ evidence and failed to consider the two cases separately.  Having raised the above four points, the trial judge said “the defendants’ credibility is shattered”, which of course means that the two defendants’ credibility was destroyed.  However, we cannot be sure whether the trial judge had separately assessed the two defendants’ credibility.  The trial judge said their credibility was destroyed because of the examples that she cited and other examples that she did not cite.  But do those unquoted examples relate to the Applicant or D3?  Or do they relate to both of them?  This remains unclear.

19. After deciding to admit the records of interview of the Applicant and D3 as evidence, the trial judge had the following to say:

“I have reminded myself that those parts of each individual defendant’s record that touch on other defendants cannot be used as evidence against those other defendants.  However, D1 admitted (at paragraph 376 of P4) that he was the driver of FY 3936 on the morning of 11 August.  Further, D3 had admitted (at paragraph 114 of P12) that he was sitting in the front seat of the car on the same day.  Add to this the evidence of PW1 to PW4 and the defendants’ descriptions (as contained in P4, 7, 11, 12, 13, 14) of their itinerary on the morning of that day, for example, they had stopped the car in order to survey the surroundings and had stopped the car for a second time so that D3 could go and fetch something, and D1 had even helped place what D3 had fetched in the boot.  The subsequent evidence is also consistent and mutually supportive.”

20. It is obvious that, although the trial judge said she had reminded herself that the record of interview of a particular defendant could not be used as evidence against the co-defendants, she went on to compare what the Applicant said in the record about the events on the date of the offence with the evidence of D3 and other witnesses and D3’s record of interview, and then came to the view that all the evidence was “consistent and mutually supportive”.  We cannot be sure that the trial judge had dealt with and evaluated the Applicant’s evidence and D3’s evidence separately.  In our view, the trial judge’s approach was not wholly appropriate and was open to challenge.

21. As for the circumstances in which the Applicant was arrested and under which he took part in the videotaped interviews, we take the view that there is also room for doubt.

22. First, the circumstances in which the Applicant was arrested.  At the relevant time, more than 10 police officers arrived at the restaurant, intending to arrest the Applicant and the other defendants.  The officers had been notified beforehand and they suspected that the Applicant and others were carrying weapons including guns, and therefore many of the officers were wearing bullet-proof clothes.  However, on the officer’s testimony, they easily bypassed many of the defendants and arrested the other defendants.  Would experienced police officers take the above action?  Would they take such a risk?  If one or more of the arrested persons suddenly tried to break loose and took out weapons or even guns, would more chaos ensue?  The police officers’ allegation that they had not taken out their pistols at all is, therefore, suspect.  The circumstances of the arrest do not bear a direct relationship with the Applicant’s subsequent participation in the videotaped interviews, but are directly relevant to the issue of whether he had a struggle with the officers when the Applicant was being arrested.  This is because if the officers had taken out their pistols prior to making the arrest, it would have been unlikely for the Applicant to resist arrest, which would in turn reduce the likelihood of his bodily injuries having been inflicted in the course of the arrest.

23. Besides, following the arrest, the Applicant had twice been taken into and out of Cheung Sha Wan Police Station and had stayed there for a long time.  He had also been questioned for four times but had never made any confessional statement.  Given the Applicant had repeatedly refused to make any confession, why did the police still have to conduct a videotaped interview with him at Kowloon West Police Headquarters?   The relevant police officer took him to the Headquarters more than one hour prior to the interview, and he was made to wait there until a recording room was available for an interview.  Why did the police not make enquiries as to the availability of the room before they took him to the Headquarters?

24. It is clear from the transcript that, during the first videotaped interview, the Applicant did not directly admit that he conspired to rob; rather, he said from time to time that he and others subsequently decided not to commit an offence.  His responses to questions throughout the interview were all concise.  Counsel for the prosecution points out that, according to the relevant records, during the interview the Applicant “rushed responses to questions for a few times” instead of being evasive to questions.  However, it can be seen from the Applicant’s responses as set out in the transcript that he did not “talk endlessly” as described by the trial judge.  Throughout the interview, the police officer in charge of the investigation frequently asked and even interrogated the Applicant with leading questions.  As pages 20, 22, 27, 30, 34, 36, 42, 43, 67 of the transcript show, the officer asked no fewer than 11 leading questions, including whether the Applicant was going to “rob” or whether he meant he was going to “rob”.  Such an approach to questioning and investigation was improper. At the second videotaped interview, the police’s approach and the Applicant’s responses were completely different from those at the first interview.  No leading questions were asked, but the Applicant, instead of giving short answers like what he did at the previous interview, gave lengthy explanations and directly admitted that he had conspired to rob.

25. The whole process from the Applicant’s arrest to the two interviews was highly suspicious: at Cheung Sha Wan Police Station the Applicant repeatedly denied the charge against him; at the first videotaped interview, notwithstanding the leading questions, he only briefly and obliquely admitted the charge; but at the second interview, he made a direct and detailed admission of the charge.  What exactly happened during that period?

26. For the above reasons, we take the view that there are indeed lurking doubts in the present case and that the Applicant’s convictions are unsafe and unsatisfactory.  We therefore grant leave to appeal and, treating the hearing of the application as the appeal, allow the appeal.  The convictions are quashed and the Applicant is acquitted.