HKSAR v. YIP SIU TAK

HCMA 364/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 364 OF 2001

(ON APPEAL FROM ESCC 4015/2000)

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J U D G M E N T

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Introduction

1. This is an appeal against conviction of six charges of offering an advantage to a public/government servant, contrary to sections 4(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. The only evidence against the Appellant, effectively, was his admission in the ICAC investigation officer's (PW1's) notebook, his two records of interview and his answers to the charge. The trial magistrate has found that all these statements made were voluntary and admitted them into evidence. The complaints are that these admissions were obtained as a result of breaches of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security ("the Rules and Directions") and the trial magistrate should have in the exercise of his residual discretion excluded these admissions.

Ground (1): The notebook entry

2. In the morning of 10 October 2000, investigation officers of the ICAC arrested the Appellant at his home. PW1 cautioned the Appellant and then questioned him about a number of matters in respect of which no verbatim record was kept. Instead, PW1 wrote out the content of the conversation in narrative form and in his own words in his notebook. The Appellant signed at the end of each page of the notebook to confirm the entry. Mr Plowman SC submits that the notebook entry was not a contemporaneous and verbatim record and that the interview breached Rules II, III(b) and (c) and IV(d) and (e) of the Rules and Directions, with the result that it was unfair to the Appellant to admit the notebook entry into evidence.

3. The Rules and Directions, as its preamble states, "are not rules of law but rules of practice. They are administrative in nature and should be followed in a practical and common sense way." The authorities have shown that breaches of the Rules does not automatically render an admission or confession inadmissible. In HKSAR v Chan Ka-chun CACC 42/1999, the Court of Appeal had this to say of the then applicable "Judges' Rules":

"There may be occasions when confessions, although voluntary, are excluded by the court in the exercise of its residual discretion as a result of serious breaches of the rules which amount to unfairness. But a breach of rules does not automatically render an admission or confession inadmissible. The circumstances when a judge would exercise this discretion will be rare and only in cases where it is clearly demonstrated that exclusion is necessary to secure a fair trial of the accused: R v Chan King-hei and others [1995] 1 HKCLR 288. In R v Ng Wai-fai, Cr. App. 238/1989, Silke V-P had this to say at p 6 of the judgment:-

'Clearly, the conversation was permitted to continue in breach of the Judges' Rules which, it must be remembered, are rules for the guidance of police officers. While breaches of the Judges' Rules may indicate impropriety and unfairness, such a breach, of itself, does not render a confessional statement inadmissible. And further this Court will only interfere with the exercise of his discretion by a trial judge if it can be shown that he was clearly wrong in the course he took or if it can be shown that he failed to consider the matters which he should or have taken into consideration matters which he should not.'

We agree. The law which governs the admissibility and exclusion of confession is well established. The Judges' Rules have been the subject in numerous judicial pronouncements throughout the common law jurisdiction in the last two centuries. The judge had considered all the evidence before him and was appraised of the full circumstances under which the confessions were made."

4. In the more recent case of Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431, the Court of Final Appeal re-stated the principle at 441C as follows:

"The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal: (1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence. To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles.

Thus, where a confession has been obtained in breach of the Secretary for Security's rules and directions (previously the Judges' Rules), this is a matter to be considered by the court in deciding whether to exercise its discretion to exclude. This should be regarded as relating to the principle in (1)....

Where there is no undercover operation, and a suspect is questioned by a law enforcement officer, the suspect should first be cautioned under the Secretary for Security's rules and directions. The caution would remind him of his right of silence. He is reminded that he has a choice whether to speak or to remain silent. If he chooses to speak and confess, the confession to be admissible must be established to be voluntary. Thus, the suspect has the safeguard of the caution as well as the safeguard of the rule of voluntariness. In this situation, where a caution has been administered and the confession is established to be voluntary, it has been rightly observed in many Hong Kong authorities that the residual discretion to exclude the admissible evidence consisting of the voluntary confession should seldom be employed. First, because relevant and admissible evidence would be withdrawn. Secondly, because the kind of conduct complained of should already have excluded the confession as involuntary. See R v Lam Yip Ying [1984] HKLR 419 at p. 424G; R v Chow Chi Hing [1993] 2 HKC 214 at p.217E (where Litton JA described the discretion as very limited); R v Chan King Hei [1995] 1 HKCLR 288 at p.292 (Mortimer JA said the circumstances for its exercise will be rare). However, circumstances may still arise for its exercise will be rare; for example, where its prejudicial effect is out of proportion to its probative value."

5. These two cases have authoritatively stated the law on this subject. For a confession to be admissible, it must be shown to have been obtained voluntarily. The Rules and Directions are for guidance of law enforcement officers when taking statements from suspects to ensure voluntariness. Breaches of the Rules and Directions may indicate impropriety and unfairness, but do not as such render a confessional statement inadmissible. A suspect has the safeguard of a caution which would remind him of his right of silence and the safeguard of the rule of voluntariness. The circumstances where the court may exercise its residual discretion to exclude a voluntary statement will be rare: for example where the prejudicial effect of the statement outweighs its probative value, or where the trial judge has failed to consider matters which he should or have taken into consideration matters which he should not.

6. There is no dispute that the entry was made under circumstances involving breaches of the Rules and Directions. PW1 explained that he was having a conversation with the Appellant then and had already told him that he would prepare a record of the conversations between them. The trial magistrate was fully aware of the breach and PW1's explanation. He was told by the Appellant that the notebook entry was made involuntarily because some of the oral admissions were fabricated by PW1 and the remainder as recorded was obtained as a result of a combination of threats, promises and inducements. He rejected those allegations and found that the notebook entry was made voluntarily. There is no appeal against that finding of the magistrate. Indeed, in the light of his adverse finding of the Appellant's credibility, it is difficult to see how an appeal against voluntariness could be launched. Mr Plowman SC asks me to examine PW1's evidence in relation to the events surrounding the recording of the notebook entry which he says were both contradictory and inherently unlikely and should not have been accepted by the learned magistrate. He submits that had the evidence not been accepted, the learned magistrate would not have refused to exercise his discretion to exclude the notebook entry.

7. Mr Plowman SC complains that according to PW1, it took him 55 minutes to record a conversation of no more than 9 to 10 minutes. The notebook entry consisted of six pages of a pocket size notebook. There was not a lot of handwritten material in those pages. To take 45 minutes to write out those six pages might appear to be too long. However, given the need to mentally work out a summary of the conversation and put it in a narrative form as PW1 did, I do not think there was any impropriety surrounding the making of the entry. Though the learned magistrate was not bilingual, he must have given the Appellant whatever benefit of doubt he deserved in that matter.

8. Mr Plowman SC criticized PW1's inability in explaining the purpose for preparing a ten page draft of the questions and answers about the conversation he had with the Appellant. What happened was that after making the notebook entry, PW1 returned to his office and made a post record of what he did that morning, including his investigation and arrest of the Appellant. This post record immediately followed the notebook entry signed by the Appellant. There could be no doubt about the chronology in which these events occurred. Then on the next day, after the two video recorded interviews had taken place, he tried to recollect, while his memory was still fresh, more details about the conversation he had with the Appellant. PW1 could not explain why he prepared the draft. Neither can I see any useful purpose for so doing except perhaps to remind him fully of what was said in the course of that 10 minute conversation in case he has to give evidence in court. However, it is not for me to supply an explanation. Be that as it may, he kept the draft and honestly produced it upon cross examination. Whatever purpose he might have in preparing that draft, I am sure the learned magistrate must have been satisfied that it was not a sinister one. I do not think I could depart from that view as the learned magistrate had the benefit of comparing the post record with the draft while I have not.

9. As a result of the production of the draft, Mr Plowman SC was able to discover PW1's inconsistency as to whether he had asked any direct questions of the Appellant about Tse Kam-yan and the lack of reference to Pang Chung-kwong in the draft. This is not a trial on PW1's memory whether at trial or on the day after the making of the notebook entry when he prepared the draft. There was no sinister motive in preparing the draft and PW1 honestly produced it. The learned magistrate must have accepted the slight inconsistency as an innocent failure of memory and must have taken that into account in assessing PW1's credibility in the light of the totality of the evidence. In my view, the small blemish in PW1's evidence could in no way affect the magistrate's assessment of his credibility. He had duly assessed the credibility of PW1 and his partner, PW2 and found them as credible witnesses. He rejected the evidence of the Appellant. I do not think this finding could be criticized at all. He said:

"... I noted that PW1 and PW2 told a credible and consistent story of what happened during the investigation. They answered clearly without evasion and with honesty. Especially PW1 when asked about his interviewing technique admitted that he was not very skilled. The two witnesses were consistent with one another and told a consistent story throughout. There was no exaggeration or attempts to dissemble. I found PW1 to be particularly frank and honest. I was prepared to place full weight on what PW1 and PW2 told me about the course of the three interviews that they conducted with the defendant.

In contrast with this was the evidence of the defendant. It had the hallmarks of a fabrication. The allegations themselves were exaggerated and unlikely."

10. Mr Plowman SC referred me to HKSAR v Wong Kai, Magistracy Appeal No. 553 of 1997 in which Deputy High Court Judge Beeson, as she then was, held that the magistrate should have excluded a non-verbatim caution statement on the ground of unfairness. In the light of the authorities I have referred to above, I do not think that case as having established any rule of law that a non-verbatim caution statement taken in breach of the Rules and Directions must be rejected. It is a matter of the trial judge's discretion to be exercised fairly and bearing in mind all the circumstances. In Wong Kai the only evidence against the defendant was that one caution statement which was not a verbatim record and the court was particularly concerned about the fact that the officer felt it was within his province to rewrite the words of a suspect. It was for that reason coupled with the lack of rest or refreshment that the appellate court felt the conviction was unsafe. In the present case, no complaint has been made of the lack of rest or refreshment. Furthermore, in addition to the notebook entry, the Appellant attended a subsequent formal video recorded interview, in which he adopted what was recorded in the notebook entry. The notebook entry was read back to him and he confirmed its accuracy. Any fear that one may have about the accuracy of a non verbatim record, as in the case of Wong Kai, were allayed by the Appellant adopting the record by his confirming its accuracy during the first video recorded interview. The notebook entry is not the only piece of evidence against the Appellant. For the above reasons, I think the present case is distinguishable from Wong Kai, and the magistrate was free not to exercise his discretion in the Appellant's favour.

11. The learned magistrate has found the notebook entry was made voluntarily. He has considered all the circumstances surrounding the making of the entry. He was aware that it was not a verbatim record. Though the questions and answers were not contemporaneously recorded, it was nevertheless made within one hour of the conversation. It was acknowledged by the Appellant who signed on every page of the notebook. It was adopted by him when he was formally interviewed later in the office of the ICAC. He had been fully advised of his right and was willing to answer the questions asked of him. In the circumstances, and in the light of the authorities cited above, there was little room for the learned magistrate to exercise his discretion. The magistrate was right in not exercising his discretion to exclude the notebook entry.

Ground (2): The First Record of Interview

12. The Appellant contends that PW1 was in breach of Principle (d) and Rule III(b) and (c) of the Rules and Directions. Principle (d) is a general principle that when a law enforcement officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence. Mr Plowman SC referred to the following finding of the magistrate at page 33K:

"So far as the question of voluntariness is concerned, I did not find that the interviewing of the defendant under video was in any way oppressive. It may have been possible to charge the defendant after the first notebook entry. However it would have meant an inadequate investigation of these offences. The decision to further interview was not in any way oppressive towards the defendant. This case clearly be seen from the videos themselves when the defendant is at ease as willing to answer and explain his involvement."

13. There is no hard and fast rule as to what constitutes "enough evidence" for the purpose of the above principle. What is enough has to be determined according to the circumstances of the case. The officers felt it necessary to have a formal interview to confirm the contents of the notebook entry and to obtain corroborating evidence from independent sources in support of the admission. That must be right, as the learned magistrate said otherwise "it would have meant an inadequate investigation of these offences." Without the further questions, what is contained in the notebook entry is just a bald admission. Without the video recorded interview confirming the notebook entry, which was just some very rough notes of an interview, the non-verbatim record would most likely be excluded by the trial magistrate in the exercise of his residual discretion, or be otherwise rejected on appeal as in the case of Wong Kai. I consider the further questioning and interview necessary. Thus, the conduct of the first video recorded interview could not even be described as a breach of the Rule. Even if it were the magistrate was right in not exercising his discretion to exclude it as the Appellant had the twin protection of the caution and the safeguard of voluntariness.

14. The Appellant also complained that he was denied the opportunity to communicate and consult privately with a solicitor before the interview commenced. Mr Plowman SC submits that having regard to the evidence of Mr Yam, the solicitor who attempted to see the Appellant after the interview, the magistrate should not have rejected the evidence of the Appellant. Mr Yam went to the office of the ICAC to see the Appellant's brother who was also detained by the ICAC. He was then instructed by the brother to represent the Appellant. By that time, the first video interview had been concluded and the second one was about to begin. I do not think that has any significant bearing on the magistrate's finding on this issue, except in so far as PW5's and PW6's conduct in handling Mr Yam's request might affect the magistrate's assessment of the credibility of PW1 and PW2 as part of the team. The magistrate was alive to that incident and he found PW1 and PW2 credible. He disbelieved the Appellant's account that PW1 did not provide him with the Law List because he could not tell the full name of his solicitor. Just before the interview began, he had been given a copy of Notice to Person in Custody in which his rights, including the right to consult his solicitor in private, were clearly stated. He made no request for legal representation during his custody in ICAC. All these are finding of fact which the learned magistrate was entitled to make and to take into account in concluding that the admission made in this video recorded interview was voluntary. On those findings, he was entitled to conclude that the Appellant had not been denied access to legal advice and that there was no breach of the Rules and Directions. I can see no reason for interfering with those findings. I do not think there is any substance in this complaint.

Ground (3): The Second Record of Interview

15. This ground of appeal is that the Appellant's counsel was denied access to the Appellant. The complaint is related to the visit by Mr Yam, which I have briefly mentioned above. After seeing the Appellant's brother who instructed Mr Yam to represent the Appellant, Mr Yam spoke to PW5 and PW6 at 9:10 p.m. on 10 December 2000 and requested to see the Appellant. PW6 left to find the Officer in Charge but could not find him. On his return, he suggested Mr Yam to defer seeing the Appellant as he had to come back the following day when the ICAC was ready to interview the brother in any event. Assuming that the ICAC was also not ready to interview the Appellant, Mr Yam accepted the suggestion and told the officers that he would leave for the time being and would wait to be informed when the ICAC was ready to take statements from both the Appellant and the brother. Then he left, but unfortunately and unknown to PW5 and PW6, the Appellant was at that very moment being interviewed by PW1 and PW2.

16. Mr Plowman SC submits that the magistrate failed to take into account the likelihood that the actions of PW5 and PW6 amounted to a deliberate attempt on the part of the ICAC to deny Mr Yam access to the Appellant and that was part of a course of conduct designed to ensure that the Appellant did not obtain access to legal advice. Mr Plowman SC draws support for his proposition from the evidence of PW5 and PW6 to the effect that they made no effort to look for the Officer in Charge and did not inform PW1 and PW2 of the request. Furthermore, the note signed by the Appellant, Exhibit D-1, at 6:40 p.m. one day after Mr Yam's visit confirming that he did not require legal representation has all the hallmarks of a cover up of the impropriety. Hence, Mr Plowman SC submits, there was a breach of Rule 8 and the magistrate was wrong to conclude that there was no denial of access but a mutual deferral to the next day.

17. I can recognise the force of Mr Plowman SC's argument. However, it is important to note that in accepting the evidence of Mr Yam and rejecting the evidence of PW5 and PW6, the learned magistrate attributed no dishonesty on the part of PW5 and PW6. He thought the officers were honestly mistaken. The learned magistrate said:

"I noted in respect of both PW5 and PW6 and also Mr Yam that they were attempting to recollect events that had occurred some four months earlier without the benefit of statements taken at the time. I consider that PW5 and PW6 were relating what they recalled of the incident which was that Mr Yam asked to see Yip Siu-tak that they didn't know what was happening to Yip Siu-tak, that Mr Yam left without seeing him and said he would return the next day. Mr Yam had a better recall of the conversation. I accepted this evidence that he requested to see Yip Siu-tak, the O/C case couldn't be located so there was no possibility of immediate satisfaction of that request. Mr Yam was under the impression because of what had been said in relation to Yip Siu-kuen that there would be no interviews that night so he was prepared to leave it at that. What happened was not so much a denial of access but a mutual deferral to the next day because nobody could establish the whereabouts of Yip Siu-tak's O/C Case. The access was not refused. It did not take place because of the unavailability of the O/C Case of Yip Siu-tak and this was because the interview was actually taking place."

18. The learned magistrate recognised that PW5 and PW6 were not the Appellant's case officers and had not made statements or notes in respect of this incident. He said they were attempting to recollect events that had occurred some four months earlier without the benefit of statements taken at the time. Accordingly the magistrate found that the officers were honestly mistaken. Thus, PW5's and PW6's evidence that they did not look for the Officer in Charge, though rejected by the learned magistrate, must be understood in the context of their mistaken recollection that Mr Yam had said he had to leave as he had something to do. It was on that basis they said they did not look for the Officer in Charge; there was no need to because Mr Yam was leaving. In accepting Mr Yam's evidence of the incident and the officers' mistaken recollection of the event, the learned magistrate must have found that what happened was that PW6 went to look for the Officer in Charge of the Case but could not find him. The fact was not as what Mr Plowman SC suggests, that PW5 and PW6 did not look for the Officer in Charge but deceived Mr Yam into leaving so as to deny him access to the Appellant. It was an unfortunate coincidence and misunderstanding but not part of a course of conduct of the team or of the ICAC designed to deny the Appellant access to legal advice.

19. The magistrate has not expressly dealt with Exhibit D-1, which Mr Plowman very forcefully submits is evidence of a cover up. I think a professional magistrate is not required to detail his thinking process in respect of each and every issue in dispute and give his reasons in full. A professional magistrate brings to bear not only his knowledge of the law and his skill in applying it, but also his experience of life and experience in judging the facts. He may, for example, consider an issue so obvious or so insignificant in the light of the totality of the evidence that he does not consider it necessary to expressly deal with it in his judgment. The note is odd. It is not a standard ICAC document. It was probably in the handwriting of PW1 but it bore the Appellant's signature. It was prepared at 6:40 p.m. one day after Mr Yam's visit. In my view, the note was probably prepared as an act of stupidity on the part of PW1 in covering up their colleagues' inadequacy in handling of Mr Yam's request rather than as a concerted effort in denying Mr Yam's access or in preventing the Appellant from obtaining legal advice. Of course, my view about this note does not matter. All the facts were clearly before the learned magistrate. It is obvious that he had considered them. In view of the magistrate's finding of PW1's and PW2's credibility as well as PW5's and PW6's credibility, he must have resolved this issue in their favour.

20. Now as the various pieces of jigsaw fall into place, what happened was that when PW6 returned after failing to find the Officer in Charge and spoke to Mr Yam, PW1 and PW2 were in an interview room with the Appellant in preparation for the interview or the interview may well have just started. From what Mr Yam had been told about the Appellant's brother, Mr Yam erroneously assumed that similarly no interview will be conducted with the Appellant until the following day after the officers have reviewed all the documents. Then he accepted the suggestion of PW6 and left without insisting to see the Officer in Charge or in his absence a more senior officer to prosecute with his request to see the Appellant. Of course, his assumption was wrong as the Appellant had already made a confession at home and had already attended one video recorded interview earlier in the day. In the circumstances, the fact that access did not take place is not determinative if there was a breach of Rule 8. Thus, despite the unfortunate coincidence and misunderstanding, the magistrate was right to conclude that there was no deliberate attempt to deny Mr Yam's access to the Appellant but a mutual deferral of the access. That could not be described as a breach of the Rule. Even if it were, it would not be unfair not to exclude the interview as the Appellant had the twin protection of a caution and the rule of voluntariness and he chose to volunteer the information. Furthermore, he had been given the Notice to Person in Custody earlier that morning and advised of his right to have access to legal advice and he chose not to exercise that right. In my view, the learned magistrate was right to find as he did that happened was not so much a denial of access but a mutual deferral to the next day because nobody could establish the whereabouts of the Officer in Charge. This ground of appeal must fail.

Ground (4): The Answers to the Charge

21. The Appellant complains that the magistrate failed to deal with the evidence of frequent visits by PW1 (and PW2) to the Appellant in the cells of the ICAC and in respect of which he testified that promises were made and inducements offered in relation to his being a prosecution witness. This ground was not actively pursued by Mr Plowman SC at the appeal. PW1 did not dispute that he had visited the Appellant four to five times during his custody in the ICAC. His evidence is that on one or two occasions it was the Appellant who requested to see him. His evidence was that these were "welfare visits" where he asked if the Appellant had any requests, such as seeing a lawyer or making phone calls. He denied ever making any promises or offering any inducement to the Appellant during those visits.

22. As I have said, a professional magistrate is not required to detail his thinking process in respect of each and every issue in dispute and give his reasons in full. The learned magistrate was alive to the dispute about the purpose of the visits. He has given a balanced consideration of the case of the Prosecution and of the Defence. He has seen the demeanour of all the witnesses. He has given a well-reasoned finding of the credibility of the prosecution witnesses and the defence witnesses. He has found PW1 and PW2 credible and the Appellant incredible. He has rejected the Appellant's evidence of offer of inducement and threat at his home when the notebook entry was made. In view of his finding of credibility, he must have rejected the Appellant's allegation of offer of inducement during these welfare visits. It is never the function of an appellate court to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the trial judge who heard and saw the witnesses at trial, unless the judge is shown to have in some way failed his duty. I am satisfied that the magistrate has not failed in his duty or his evaluation was shown to be absent, irrelevant, lacking, careless or flawed in any substantial way when he evaluated the evidence of PW1 and PW2. I do not think it is open to me to interfere with the magistrate's finding.

23. Mr Plowman SC's real argument is that in the event that he succeeds in Grounds (1) to (3), then the "knock on effect" would render the Answers to the Charge inadmissible. I do not doubt the correctness of his proposition, but in the light of my conclusion in respect of Grounds (1) to (3), I do not need to consider this "knock on effect". This ground of appeal must also fail.

Conclusion

24. In the circumstances, this appeal is dismissed.