HKSAR v. YAYU MASIH

HCCC 339/2020

[2021] HKCFI 3044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 339 OF 2020

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RULING
REASONS FOR RULING ON VOIR DIRE

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INTRODUCTION

1.  Yayu Masih, hereafter “the accused” faces an indictment alleging that on 28 November 2019 at the lift lobby of the 6 floor of the Ever Gain Centre in Sha Tin, she unlawfully trafficked in a dangerous drug namely 1.48 kg of a solid containing 0.914 kg of cocaine.

2.  On arraignment, the accused pleaded not guilty.  The Court was notified that the accused objected to the admissibility of a video recorded interview taken between customs officers and the accused on 29 November 2019.  Particulars were supplied by former counsel for the accused.  For reasons not material to this one idea the counsel who drafted the particulars is no longer able to attend at these proceedings but Mr Andrew Bullett, Barrister at Law now acts for the accused on the instructions of the Director of Legal Aid.  He has adopted the particulars of objection.

3.  On 16 July 2021, an informal identification parade occurred in the High Court to accord to the accused the opportunity to identify any participants in the misconduct alleged in the particulars of objection. One officer was picked out.  

the voir dire

4.  A voir dire proceeding commenced on 19 July 2021.

5.  The case for the prosecution was that this case arose out of a delivery of a parcel to the inbound cargo examination building at Lok Ma Chau Control Point on 26 November 2019.  That parcel was examined and was addressed to “Nur Janatin” and a contact number given of +852 5585 1037.  The address was in Kam Tin in Yuen Long.

6.  The suspicions of the customs service were aroused and ultimately it was revealed that the parcel contained 1.480 kg of a solid containing 0.914 kg of cocaine. It is an admitted fact that the estimated retail street value of the cocaine was about $1.554 million as at November 2019.

7.  The case for the prosecution is that the accused presented at the UPS Shek Mun Centre at the Ever Gain Centre near Sha Tin to collect the parcel. She was arrested shortly after that and she made a statement in English which was post-recorded.  Although the admitted facts do not specifically admit that the statement was voluntary, the voir dire has been conducted upon the premise that it is.

8.  It is part of the case for the accused on the voir dire that the previous statement which was reduced into writing as a post-recorded and is intended to be exhibit P38 at trial is significant in this case.  It is said to be significant because the accused revealed a degree of information in that statement and that she did not need to undergo a video recorded interview to repeat all of that.  Counsel appearing for the parties have, both contended that there is not much difference in content between the video recorded interview and the post-record created on the previous day.  A further context needs to be added to this in 2 respects:

(1)  The accused had been given a Notice to Person in Custody prior to the video recorded interview and this has been explained in English to her and, indeed, in due course, interpreted to her in Bahasa Indonesia by an interpreter.

(2)  The accused had undertaken a controlled delivery operation and that had not produced a successful delivery.

Particulars of objection

9.  The particulars of objection are to the effect that the accused was informed that shortly before the video recorded interview on 29 November 2019, she had to undergo a video recorded interview.  The second contention is that she was told she would be released from custody if she told the Customs & Excise officers everything she knew about the matter.  At the hearing, the accused asserted that she had told the customs officers shortly before the interview commenced that she wondered why she had to go through this procedure because she had already given them all the information she knew.

The evidence

10.  Five witnesses gave evidence for the prosecution in the voir dire.  4 of them were officers of the Customs & Excise Service.  In brief, their evidence was that the accused made no assertion that she wondered why it was necessary to give the video recorded interview and none of them asserted anything like the complaint in the particulars and the voir dire that she gave the video recorded interview she would be released from custody if she told everything she knew about the matter.

11.  A further witnesses called on behalf of the prosecution who was the Indonesian interpreter present. His testimony was that he truly interpreted between Bahasa Indonesia and English and English and Bahasa Indonesia, however he had no recollection of the events concerning this case. He very properly made the point that he does this kind of thing all of the time and could not assist the parties.  He was shown the first few minutes of the video recorded interview to see if that jog his memory in any way.  It did not. I believe this witness and sympathise with him.  Part of the reason for calling him was that essentially it was the case for the prosecution that such misconduct on the part of a customs officer would be unlikely to have occurred given that the interpreter must have been present at the time at which the improper conduct must have occurred. As counsel for the prosecution argued, even if the witness now has no independent recollection of the events, it must be true that the customs officers would be unlikely to say improper things in the presence of a third party.

12.  The customs officers who were called as witnesses told the Court that nothing was said by or to the accused outside the video recording room.  The second prosecution witness did say that she was in a different room on the 9^th floor (which was the same for as the video recorded interview room) in what could be characterised as a holding room.  There she told the accused in the course of her cross-examination that “interpreter, please tell her we will start the video recording interview”.  The witness then told the Court that the interpreter said something to the accused which she assumed was the interpretation of that event.

13.  The accused testified that there was no conversation in the holding room with the second prosecution witness.  She said that she told the officers outside the door of the video recorded interview room that she did not want to do the interview and that she had already given information to the customs.  She asserted that an officer said to her that if you cooperate and do the interview you will be left free.  She told the Court that she believed that and that was the reason that she gave the interview.

14.  On 30 November 2019, the accused was taken to a police station.  Following enquiry by police at the station she was recorded as saying she had no complaints.  The accused testified that the assertion that she had no complaints was referable only to the accounting for her prisoners property.

15.  It was put to the accused that she never made a complaint in the magistrates proceedings which ensued.

EVALUATION

16.  The burden of proof is on the prosecution to establish that the admission in the video recorded interview was voluntary in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression. Those principles were established as long ago as Ibrahim v R [1914] AC 599, 609 and are the law of Hong Kong: S-J v Lam Tat-ming & Anor (2000) 3 HKCFAR 168, [2000] 2 HKC 693.

17.  In the event that I considered that it was a reasonable possibility that there had been an inducement in the sense of an offer to let the accused go in the event that she gave the video recorded interview than the outcome would be clear.  I was also concerned by the possible implication of what the second prosecution witness told her in the room prior to going into the video recorded interview room.  I actively wondered whether that alone was a direction that she had to undergo the interview.  I wondered whether it was ambiguous in that it could be simply the provision of information about what is to happen next or a direction as to what will happen next. After careful reflection, I have come to the conclusion that this was the provision of information.  In any event, the accused said that such a conversation never occurred and it would follow from that that I have no information in the event that occurred as to what if any impact it had on the accused.  In any event, the short position is that I am of the view that having carefully reviewed what was said it is the provision of information rather than said in any prescriptive way.

18.  Counsel for the accused argued, the approximate similarity in the post-record and the video recorded interview conceivably lends weight to the assertion by the accused that she had nothing more to give in terms of information.  However, this is, in my opinion, by no means determinative. It is consistent with the case for the accused that her reason for not wanting to give a further interview was that she has given all the information available to her already.  It by no means establishes what was said. At best it establishes a fact which was consistent with the position of the accused in the event that there was a reasonable possibility that she said what she said.  For the avoidance of doubt, the accused has nothing to prove.  I took no account of the issue of the alleged absence of complaints on the part of the accused.

19.  The real issue is whether there is a reasonable possibility that the words that the accused says were said by a customs officer outside the door of the video recorded interview room.  The officers called by the prosecution gave evidence in a straight-forward manner.  Their credibility was not dimmished in cross-examination.  The accused did not strike me as a witnesss of truth.  The inducement alleged by the accused made no sense at all.  After careful reflection, I am satisfied beyond reasonable doubt that no inducement was held out to the accused – either as alleged by the accused or otherwise.

20.  For these reasons, I order that the video recorded interview made on 29 November 2019 between the accused and the customs officers is admissible in evidence.