YEUNG KA YEE v. HKSAR

FAMC No. 16 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 16 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 107 OF 2001)

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DETERMINATION

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Mr Justice Chan PJ:

1. The applicant (who was D1 at the trial) together with D2 and D3 were convicted of murder. The victim was lured by D2 to a Cheung Chau holiday flat where she was robbed by the three defendants. During the robbery, she was suffocated by a pillow pressed over her face by one of them while the other two held her down on a bed. They hid the body near a small beach. When they went back to the beach about a week later to better conceal the body, they were arrested by the police.

2. In the present application, the applicant seeks a certificate on two questions of law which relate to the allegedly oppressive police conduct after her arrest and the obligation of the police to inform her of her right to have access to legal advice. She also relies on the substantial and grave injustice ground.

3. At the trial, the prosecution relied on the records of police interviews of the applicant. The admissibility of these records was challenged by the applicant on the grounds of improper conduct and oppression by the police but they were admitted in evidence after a voire dire. In her interviews, the applicant put the blame on D2, admitting, however, that she had assisted in holding the victim down on the bed while D2 pressed the pillow over the victim's face. When she testified in court, the applicant maintained that it was D2 who killed the victim but retracted what she had said in her statements and denied having assisted in killing the victim. She sought to explain the difference by saying that police conduct had made her too scared to deny in her statements to the police that she had taken part in the killing. D2 in evidence put all the blame on the applicant while D3 also blamed D2.

4. The first point raised by the applicant relates to an alleged breach of s.51 of the Police Force Ordinance, Cap 232 by the arresting officers. Section 51 provides that every person taken into custody by the police shall be forthwith delivered into the custody of the officer in charge of a police station. It transpires that after her arrest, instead of taking the applicant and the other two defendants immediately to the police station, the police took them to the rooftop of the holiday villa where the robbery and murder took place. They were kept there for 2 hours before they were taken to the police station. The explanation given by the police was that they took this course for better security, to avoid media attention, to preserve evidence and to preserve the anonymity of the intelligence officers. The applicant's case was that in breach of s.51, the police took her to the rooftop to be ill-treated and she did indeed suffer ill-treatment there, including being slapped on the head.

5. In her summing up, the judge directed the jury on this matter in the following way:

"You have heard the defence say that the police failed to comply with the requirement under section 51 of the Police Force Ordinance that arrested persons be forthwith delivered into the custody of the officer in charge of a police station or a police officer authorized in that behalf by the Commissioner of Police. The defence say that by taking the accused to the roof of Bella Vista Villa and keeping them there for a time before taking them to Cheung Chau Police Station, the police failed in that duty. The police officers have said that they do not understand the forthwith requirement as one which prohibited what they did.

I direct you to assume that, as a result of the accused being taken to the roof and kept there for a time, that requirement was not complied with. Even so, what matters is why the accused were taken to the roof and what happened there. If the accused were ill-treated as alleged, then subsequent out-of-court statements by them would be unreliable whatever 'forthwith' means. But if the accused were treated properly, then the out-of-court statements would not be rendered unreliable merely because taking the accused to the roof and keeping them there amounted to non-compliance of the 'forthwith' requirement no matter how honestly and sincerely the police behaved.

You are concerned with whether the out-of-court statements are reliable. As to that, in respect of each accused, the focus of your attention should be on whether you are sure that his or her out-of-court statements were made and were made without any improper treatment which might affect its reliability.

Here, the allegations of impropriety made by each of the accused against police officers are very serious. If you are unsure that any admission was made in the circumstances free from such impropriety, then you should give that confession no weight. Where, however, you are sure that the truth about the taking of an out-of-court statement comes from the police and not from the accused concerned, then you would be entitled to give that statement full weight."

6. Having had the alleged ill-treatment put squarely to them, the jury must plainly have been satisfied that there was no ill-treatment and rejected the applicant's evidence in that regard. However, the applicant's contention is that the mere fact of the two hours delay in conveying the applicant to a police station, notwithstanding the explanations for the delay put forward and without that delay involving any mistreatment of the applicant, could itself amount to oppression so as to render the admissions unreliable for the simple reason that such delay constituted a breach of s.51. Counsel submits that to hold otherwise would be to trivialise the important constitutional protection offered by that section.

7. Section 51 is no doubt an important provision for the protection of those taken into police custody. However, we do not think it reasonably arguable that an issue of oppression must necessarily arise whenever there has been any kind of non-compliance with its provisions. Some breaches may amount to oppression, but an assessment of the facts is required to see whether there was in fact oppression: see Secretary for Justice v. Lam Tat Ming & Another (2000) 3 HKCFAR 168, 177. Here, the applicant's case was that oppression had occurred because she had been diverted to the rooftop to be mistreated, that she was in fact mistreated and that this was what had frightened her into making an unreliable admission. We consider that the Judge properly put the applicant's case to the jury and that the Judge's direction on oppression was unarguably correct. We accordingly find that no question of great and general importance arises on the facts of this application.

8. With regard to the second point, it appears that before the applicant was interviewed, she was shown a Notice to Persons in Custody setting out her right to have access to lawyers and that she signed a copy acknowledging that she had read and understood it. She made no request for a lawyer. She was however not reminded of this right immediately before the interview started.

9. The Notice is in the following terms :

"Provided that no unreasonable delay or hindrance is reasonably likely to be caused to the process of investigation or the administration of justice, a person in custody has the right to :

(1) make telephone calls to friends or relatives;

(2) make private telephone calls to, or communicate in writing or in person with a solicitor or barrister;

(3) have access upon request to a list of solicitors provided by the Police;

(4) have a solicitor or barrister present during any interview with the Police;

(5) communicate privately with a solicitor or barrister claiming to have been instructed by a third person on your behalf;

(6) refuse to communicate with a solicitor or barrister whom you have not personally requested;

(7) have letters posted or delivered with the least possible delay;

(8) be provided with a copy of your cautioned statements or questions and answers under caution as soon as possible after interview;

(9) refuse to answer subsequent questions until a copy of cautioned statements or questions and answers under caution are provided;

(10) be provided with a supply of writing materials upon request."

10. It is argued that the contents of the Notice are not sufficient to safeguard the rights of an arrested suspect in that it ought expressly to have stated that the right in paragraph (4) was to have a solicitor or barrister present to advise during a police interview. It is also argued that the applicant should have been orally reminded of the right to have access to a lawyer immediately before the interview commenced.

11. Whether a suspect has been sufficiently reminded of his right to have access to a lawyer is a matter of fact. We are not persuaded that the Notice to Persons in Custody is deficient as alleged by counsel. Any person reading the Notice would understand it to include a right to be advised by a lawyer during an interview. We are also not satisfied that the applicant in the present case has been deprived of such right.

12. We do not think the second point raises any question of law of great and general importance either.

13. Having regard to all the evidence in this case, we do not think it is reasonably arguable that there is any substantial and grave injustice.

14. For these reasons, the application for a certificate and for leave to appeal is refused.