HKSAR v. TANG SIU CHUEN

CACC67/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 2007

(ON APPEAL FROM DCCC 900 OF 2006)

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REASONS FOR JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. The applicant was convicted after a trial before Judge Chua in the District Court of an offence of conspiring with others to steal 9,075 kilograms of ginseng, contrary to section 9 of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  He was sentenced to three years six months’ imprisonment and sought leave to appeal his conviction.  On 26 February, we dismissed the application and now give our reasons.  

THE PROSECUTION CASE

2. The prosecution case was essentially that on 2 August 2006 the applicant was a casual driver for a delivery company Pak Lung Logistics Company (“Pak Lung”) which had been retained by a Madam Wu, a ginseng trader operating a company called Shun Fat, to collect the 9,075 kilograms of ginseng from a company in Sheung Wan.  

3. The applicant drove his truck to Sheung Wan, and together with a person So, his “off-sider”, collected the ginseng.  But before they had delivered the goods to Shun Fat’s warehouse they were instructed by Pak Lung staff that the warehouse was full and that the lorry and the goods in it were to be left at a public car park in Shatin. 

4. The applicant did as he was instructed and at about 6 p.m., after locking his lorry, left it in the car park and gave the keys to So who was employed also by Pak Lung. 

5. Later that evening, at about 7 p.m., a staff member of Pak Lung went to the car park and confirmed that the lorry was parked there and properly secured.  The next day, 3 August 2006, at 8 p.m. when a Pak Lung staff member went again to the warehouse to check the lorry it was missing.  Two days later, on 5 August 2006, the police located the lorry in Yuen Long.  The driver’s door had been prized open and its ignition lock tampered with.  Its cargo of ginseng was missing.  Two days later, on 7 August virtually all the ginseng was recovered when a lorry carrying it was intercepted in Castle Peak Road by police.  The applicant had left Hong Kong and gone to the Mainland on 2 August.  He returned to Hong Kong on 10 August 2006 and was arrested by police.  

6. Subsequently the applicant was interviewed under caution and it was the contents of the record of that interview which formed the basis of the case against him.  It was admitted into evidence after a voire dire conducted by way of the alternative procedure.  The applicant gave evidence neither on the special nor general issues. 

7. The record of interview was not video-recorded but was hand-written by the interviewing officer PW3.  It is an example as to why video-recorded interviews are infinitely preferable to the older style of hand-written records of interview.  Much of what was argued at trial and before us would simply not have arisen if that had been done. 

GROUNDS OF APPEAL

8. The grounds of appeal advanced on the applicant’s behalf by Mr Khattak of counsel are wholly concerned with the judge’s admission of the record of interview into evidence, and may be set out as follows :

(1)     the judge failed to take into account mistakes and inaccuracies in the record of interview;

(2)     the judge was wrong in finding the recorded interview was voluntary;

(3)     the judge failed to consider the recorded interview was in breach of the Secretary for Securities’ Rules and Directions for the questioning of suspects; and

(4)     the judge failed to consider properly the evidence of a defence witness. 

There was a further 5^th ground originally advanced by Mr Khattak, but that was abandoned prior to the hearing. 

Ground 1 — the mistakes in the record of interview

9. Mr Khattak relies on four aspects of the evidence which point to errors having been made in the recording of the applicant’s interview.  As will be seen each of these matters was trivial or of no real substance. 

10. The recorded interview took the form of an initial post-recording of the applicant’s earlier statements when first arrested and cautioned, followed by other more detailed questions.  It is common ground that the applicant had been cautioned at its commencement and then another caution was recorded as having been given prior to the commencement of the interview proper.  That second caution however was expressed as follows :

“… TANG Siu-chuen [the applicant] said… ‘You’re not obliged to say anything…’”

11. In other words, as recorded, it appears that the applicant was in fact cautioning PW3 the interviewing officer.  It cannot responsibly be suggested that matters took place in that way and it is plain that this was an error made by PW3 in recording that portion of the interview. 

12. Mr Khattak suggests that this error as with the other error we will deal with in a moment shows that PW1 was “sloppy” in his approach to his task of recording the applicant’s statements and renders the record of interview unreliable.  But the effect of this error on the reliability of the recorded interview was purely a matter of weight and therefore a matter for the judge.  The judge was plainly aware of the error, it having been pointed out in evidence during the cross-examination of PW1.  Regardless of how the error arose it was obviously little more than a slip of the pen, as the judge herself remarked, and it is inconceivable that it was of weight in determining the admissibility of the record of interview. 

13. Mr Khattak’s 2^nd complaint is of similar ilk.  In the preamble to the recorded interview PW3 wrote :

“… At 9.35 am on 10 August 2006, while leaving the territory through the Lok Ma Chau Border (Crossing), you were arrested by Police Constable 54428 for the offence (…) of theft from vehicle, …”

14. It is common ground that the applicant had been entering the territory at that time and was not “leaving” it.  This was another error and may not have been a slip of the pen so much as a misunderstanding on the part of PW1, who was not the arresting officer.  Even if that were so, it was an error completely unconnected to any other issue going towards the admissibility of the record of interview, apart from the general issue of the accuracy of the recording of its contents, and again was a matter to which the judge was entitled to give no or little weight. 

15. The 3^rd complaint under this ground is that PW1 in recording in his notebook that he had given a copy of the record of interview to the applicant described it as a six-page record of interview.  It was in fact a document comprising ten pages.  This error, again admitted by PW1, falls also in our view into a category which the judge was entitled to regard as immaterial.  It should be noted that this error did not occur in the record of interview itself but in the police notebook of PW1 after the record had been completed. 

16. The final matter relied upon by Mr Khattak under this 1^st ground is that after PW3 had been cross-examined in connection with the above errors made in the record of interview itself and in his notebook he was asked (and answered) these questions :

“Q.    So you agree with me that in this cautioned statement of yours you have made a number of mistakes?

A.      Yes.

Q.      And, Mr So, you are still not sure whether or not you have made any other mistakes in this cautioned statement?

A.      That’s right.

Q.      Thank you, Mr So.  Now, Mr So, I’ll put my case straight to you …

COURT:   Sorry, what other mistakes has he made?  You just can’t leave it in the air like that.  If there are inaccuracies and mistakes, then I should know about them.  

…

MR KHATTAK: Well, I’m going to try to point out these mistakes to him now.”

17. As things transpired counsel’s further cross-examination of PW3 uncovered no more mistakes in the recording of the applicant’s interview.  Nevertheless Mr Khattak in these proceedings relies on PW3’s agreement with the proposition that he may have made other mistakes in the recording of the record of interview.  This was wholly speculative evidence and the judge was right to intervene.  The evidence as given, i.e. that PW3 was not sure whether there were other mistakes in the record of the interview could not have taken matters further, particularly where it was never suggested either at trial or before this court that there were in fact any other such errors.  There was no substance to this ground. 

Ground 2 — the voluntariness of the recorded interview

18. The first argument put forward by Mr Khattak in this regard is that in his recorded interview the applicant in the first question and answer provides this information :

“Question 1:    After (I) cautioned you, you said to me, ‘Ah Wah is the chief plotter behind this case.  I just supplied them with information.  I didn’t take part in the act.’  What is meant by this case?

Answer 1:         That is the case in which the goods vehicle GC 8861 of Pak Lung Transportation (Company) was stolen.”

19. Mr Khattak’s point is that Mr Luk, the proprietor of Pak Lung, in his evidence had said he had never told the applicant, who was a casual driver, the name of his company.  Therefore, goes the argument, PW1 must have “coached” the applicant in his answer or fabricated it. 

20. Mr Khattak relies also on the applicant’s answer to question 13 later in the record of interview :

“Question <13>    In Question 4, you’ve mentioned (you)’re working as a driver in a transportation company.  What’s the company’s name?

Answer <13>        I don’t know the company’s name, but the proprietor is surnamed LUK! …”

21. It is true that the recorded answers of the applicant to questions 1 and 13 seem contradictory.  But there may be many reasons for that.  Inconsistencies in that which an arrested person says during the course of a recorded interview with police are not unusual.  They do not necessarily point to fabrication of the record but may be indicative of confusion on the part of the interviewee or a change of position by him.  In the absence of the applicant giving evidence as to this matter, the judge was entitled to accept the evidence of PW3, who she regarded as a truthful witness, regarding the applicant having given both answers. 

22. The evidence of the proprietor of Pak Lung could not by itself establish that the applicant was unaware of the name of Pak Lung at the time he participated in the interview with PW3.  It may well be that other avenues existed by which the applicant learnt of that company’s name.  We note that it was not disputed the applicant had driven for Pak Lung on prior occasions and on the particular occasion we are concerned with he had as an assistant or “off-sider” a person who was apparently employed by Pak Lung.  No doubt there were a number of ways the applicant could have learnt of the name of the company employing him without being told this by its proprietor Mr Luk.  

23. Mr Khattak argues also that the applicant was not aware of the true nature of the investigation and the reason for his arrest at the time of his interview by PW3.  The applicant was arrested at the Lo Wu Border Crossing as he returned to Hong Kong from the Mainland.  The police officer who arrested him (not PW3) cautioned him in respect of the offence of “theft from a vehicle”.  The applicant was, a few hours later, dealt with by PW3 in the report room of Tin Sum police station and was cautioned by PW3 in respect of the theft of “165 buckets of American ginseng, worth $1,800,000 from goods vehicle GC8861” (i.e. the Pak Lung lorry driven by the applicant on 2 August). 

24. Subsequently that caution and the applicant’s response to the effect that he had simply supplied “Ah Wah” with information and that “Ah Wah” was the “chief plotter” were post-recorded at the commencement of the applicant’s record of interview.  Following that post-recording the applicant was again cautioned before the commencement of the body of the interview.  On this occasion he was told he would be questioned “in regard to the case of taking conveyance without authority and theft from vehicle”. 

25. We do not see how the applicant could have been in any way unaware of what the police investigation was about, and the statements given by the applicant were in no way obtained unfairly in that regard. 

26. Mr Khattak makes other complaints concerning the questioning of the applicant under this ground.  Firstly, he suggests that the Notice to Persons in Custody (“the Notice”) provided to the applicant was never read over to him.  The evidence before the court however from both PW3 and PW2, the officer who arrested the applicant at the Lo Wu Border Crossing, was that both officers served Notices on the applicant and the applicant read them and said he understood them.  In our view that is sufficient to comply with Direction 8(d) of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (“the Rules and Directions”).  The purpose of that Direction is to ensure that an arrested person understands his rights.  It may be that in certain circumstances it is desirable to read the Notice to an arrested person, because for example of his age, infirmity or illiteracy, but there was nothing to suggest it was necessary in the present case. 

27. Mr Khattak finally suggested also that PW3, during the interview of the applicant, held in his hand the key of the lorry in which the stolen ginseng was found as he questioned the applicant, so as to have the applicant describe that key and, in recording that description, so suggest the applicant was familiar with that vehicle.  It seems to us that this argument was completely devoid of sense or merit.  The applicant had already admitted driving that lorry on previous occasions.  It was never in issue that he had some familiarly with the vehicle, and in any event PW3 denied having held the key as Mr Khattak asserted.

28. There is no merit to this ground of appeal. 

Ground 3 — breaches of the Rules and Directions

29. The primary complaint of the applicant is somewhat convoluted.  Mr Khattak argues from two somewhat contradictory positions.  Firstly he asserts that PW5, who was a detective sergeant conducting the investigation in the case, was of the view that there was, apart from the contents of the applicant’s recorded interview, enough evidence against the applicant to warrant him being charged with the offence of theft of the ginseng.  That being so, says Mr Khattak, the applicant should have been charged or informed that he may be prosecuted and the restrictions of Rule III(b) would then apply. 

30. Having said that however Mr Khattak’s further expressed position was that there was no evidence against the applicant prior to his interview, and that PW5, for some reason, was not being truthful in this regard.  It must be said that Mr Khattak’s position and his argument before us in this regard was less than clear.  Nevertheless as we understand Mr Khattak he was suggesting also that this aspect of the evidence simply went to PW5’s credibility and was not properly taken into account by the judge. 

31. While it was common ground both at trial and before us that there was, in the absence of the contents of the applicant’s recorded interview, no other evidence against him such as to found a prosecution or warrant him being charged with any offence, the evidence of PW5 was as follows :

“Q.    Were you not concerned whether or not there was sufficient evidence to charge D1?

A.      I believed there was enough evidence. 

Q.      Without seeing the cautioned statement?

A.      We must have our own reason for his arrest.  So we would charge him.”

and later :

“Q.    So you were the officer who asked him to sign on charge sheet.  You charged him, right, D1? 

A.      That’s right.

Q.      And yet you didn’t even read the cautioned statement. 

A.      That’s right. 

Q.      And you claimed that you had enough evidence to charge D1; right? 

A.      That’s right. 

Q.      So you are saying that even without this cautioned statement, the police would have enough evidence to lay a criminal charge, to prosecute D1. 

…

A.      I think we could because I believe we charged the 1^st defendant, Tang Siu-chuen, because we believe that he had participated in this crime. 

…

Q.      … Where did the evidence come from to charge him, to prosecute him, apart from this cautioned statement?

A.      Upon investigation, we believed that Tang Siu-chuen had participated in this crime. 

Q.      You could not be so vague.  No one has implicated D1 in any manner.

…

A.      Because Tang Siu-chuen was once the driver of the lorry which had been stolen. 

Q.      And that is the only basis of your evidence; right?

…

A.      And our investigation revealed that some outside communication he had might be related to this case. 

Q.      But the communication records did not tell you the contents of the communication. 

A.      That’s right. 

Q.      So anything else?

A.      That’s all.”

32. At trial it was apparently Mr Khattak’s position that there was, without the contents of the applicant’s recorded interview, no evidence to warrant him being charged.  That was succinctly confirmed by the trial judge, after PW5 had given the evidence set out above, as follows :

“COURT:  Your position is there wasn’t any evidence.  Mr Li, the sergeant [PW5], is not a lawyer.  Yes. 

MR KHATTAK:  Yes, your Honour.”

33. We note however that in his cross-examination of PW3 at trial Mr Khattak’s position was that the arrest of the applicant was unlawful as there was nothing at that time to arouse suspicion that the applicant had been involved in the theft of the ginseng.  Mr Khattak’s somewhat contrary complaint before us however is that, on the basis of PW5’s evidence, the applicant should have been charged or informed he may be prosecuted so as to trigger the restrictions of Rule III(b) of the Rules and Directions.  That complaint is based, in our view, on very tenuous grounds indeed. 

34. It does not in our view sit well that counsel should argue at trial that there was no evidence against the applicant other than that contained in the recorded interview and on appeal then suggest that because of the plainly mistaken view of a police officer the appellant should have been charged or warned he may be prosecuted pursuant to principle (d) so as to gain the protection of Rule III(b).  

35. We make two observations concerning principle (d).  Firstly, the purpose of the principle is to prevent the continued holding and questioning of a suspect concerning an offence when there is clearly sufficient evidence to warrant him being charged with that offence.  The principle is designed to protect a suspect from indefinite and unnecessary questioning and to enforce a procedure (in conjunction with other provisions in our law such as section 52(1) of the Police Force Ordinance, Cap. 232) ensuring that he will be brought before a court within a reasonable time. 

36. Secondly, the principle is not intended to be applied unrealistically so as to prevent proper inquiries being made of a suspect.  It may be for example that at quite an early stage in an interview with police a suspect admits an offence.  That does not mean that the interview cannot proceed.  In our view the interviewing officer is entitled to make further inquiries of the suspect during that interview so as to place that admission in a fair and proper context. 

37. In the present case, prior to the applicant’s interview with PW3, there was quite clearly no evidence warranting the applicant being charged with any offence.  As PW3 said in cross-examination :

“Q.    Mr So, do you agree or disagree with me that without this cautioned statement the police would not have any evidence to charge or prosecute D1?

A.      … Yes.”

38. The evidence of PW3 was quite certain in this regard and accorded with the realities of the case.  In our judgment no unfairness could have been occasioned the applicant by PW3 conducting an interview with him, and the judge was entitled to ignore the evidence of PW5 and any suggested breach of principle (d) in this regard.  

39. Mr Khattak also complains under this ground that pursuant to Rule V(a) of the Rules and Directions an accurate record should be made of any interview with a person suspected of an offence.  He says that the record of the applicant’s interview was not accurate.  The matters he relies upon in this regard, it is fair to say, were trivial and were immaterial to the issue of admissibility of the record of the interview or, indeed, to the weight to be given it once admitted.  One example will suffice.  In Answer 3 in the record of interview a telephone number proffered by the applicant was crossed out and another written in.  PW3 said that was because the applicant had told him the first number was wrong and then told him the other number.  Mr Khattak’s complaint was that this brief conversation was not included in the body of the record of the interview.  We do not think the omission of this brief and uncontroversial conversation either alone or with the other matters Mr Khattak relies upon as set out in his 1^st ground could have so altered the nature of the record so as to breach Rule V(a).  There was no substance to this complaint. 

40. Mr Khattak also relies on a breach by PW3 of Rule IV(a).  He argues that the declaration required to be recorded by that sub-rule was in fact written by PW3 rather than the applicant.  With respect to Mr Khattak he seems to have misconceived the meaning of the sub-rule.  It does not require the suspect himself to write the declaration but simply to sign that declaration, nor is there any requirement under Rule IV(a) for the officer to ask the suspect whether he wishes to write the declaration as suggested by Mr Khattak.  

41. Rule IV(a) deals, inter alia, with the procedure to be adopted when a suspect elects to have a police officer record his statement rather than write it himself.  Once the suspect has elected to have the officer record his statement, a declaration to that effect is recorded on the statement and simply signed by the applicant to signify his understanding of its contents.  There was in fact no breach of that procedure in this case and this complaint is devoid of merit. 

42. The final complaint of Mr Khattak under this ground is that the applicant did not receive a complete copy of his ten-page record of interview at the conclusion of its making as required by Direction 8(a)(v).  It was common ground as we have said that for some reason it was recorded in PW3’s notebook that a six-page copy of the record of interview was provided to the applicant.  PW3’s evidence was that he had simply mis-recorded the number of pages but had served on the applicant a full copy of the record of interview.  This matter was fully ventilated before the court.  What weight to place upon it so far as the admissibility of the record of interview was concerned was entirely a matter for the judge.  Neither by itself nor in conjunction with the other matters raised by Mr Khattak would it have rendered the admission of the record of interview into evidence wrong or unfair.  

43. There was no merit or substance to this ground. 

Ground 4 — the defence witness

44. An issue arose at trial concerning the seizure of the applicant’s mobile phone.  The applicant’s case was that his mobile telephone had been taken from him by PW3 while the applicant was in the holding cells of Ma On Shan police station prior to the commencement of the recorded interview, so preventing him from contacting his family or a lawyer.  PW3’s evidence was that he had searched the applicant only after the interview and then found the telephone and seized it. 

45. In support of his case the applicant, though he did not give evidence himself, called a witness (“DW1”) who was being held in the same holding cell as the applicant at the time the applicant alleged his phone was taken.  DW1 said he had seen a police officer come in and take a mobile telephone from the applicant.  The judge did not accept DW1’s evidence and stated she “did not believe him”.  Mr Khattak says the judge gave no reason for arriving at this conclusion.  

46. It is true the judge did not give her reasons for disbelieving DW1.  But it should be borne in mind that she was dealing with her findings on the special issue at the time, and that the question of when the mobile phone was seized was a relatively minor issue in the determination of the admissibility of the record of the applicant’s interview with PW3.  District judges are not obliged to give reasons for every finding of fact made by them.  Nor are they necessarily obliged to record their reasons for their assessment of the credibility of every witness called before them.  A witness such as DW1 who gave evidence on a somewhat marginal issue during the special issue, we are satisfied, did not as a matter of necessity require specific reasons being given as to the judge’s rejection of him as a credible witness. 

47. This ground also failed and the application was dismissed.