HKSAR v. WAN KWOK HUNG

CACC 287/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 287 OF 2007 

(ON APPEAL FROM DCCC No. 190 of 2007) 

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J U D G M E N T

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Hon Tang VP:

1.  I agree for the reasons given by Yeung JA the application for leave to appeal against conviction and the application for leave to appeal against sentence should be dismissed.

2.  I also agree with Wright J that a suspect has an absolute right to decline to be interviewed.  I believe it is in the interests of justice that whenever possible interviews should be video-recorded (except for trivial offences).  But a suspect must be told if it is proposed that the interview should be recorded.  I do not share Wright J’s view that a consent to be interviewed could be taken as “unconditional” such that a suspect’s consent to the interview being recorded by video is not required.  It is important that a suspect’s rights be not eroded.

Hon Yeung JA:

Introduction

3.  The applicant (Wan Kwok Hung) and his co-accused (Wan Chi Hung) are brothers. They appeared before Judge Mackintosh in the District Court on an indictment consisting of five charges. The applicant was jointly charged with his brother on the 1^st charge of conspiracy to commit blackmail, the 2^nd charge of theft and the 3^rd charge of blackmail. He was also separately charged with the 4^th charge of criminal damage and the 5^th charge of being a member of a triad society.

4.  The applicant pleaded guilty to the 4^th charge of criminal damage, but together with his brother, pleaded not guilty to the other charges. They were, however, convicted of all of them.

5.  In respect of the 1^st to the 5^th charges, the applicant was sentenced to 3 years and 6 months, 3 years, 2 years, 2 months and 9 months’ imprisonment respectively. All sentences, with the exception of 3 months of the 2 years in respect of the 3^rd charge, are ordered to run concurrently. The total sentence on the applicant is 3 years and 9 months.

6.  The applicant sought leave to appeal against both conviction and sentence. Mr B Yuen represented the applicant on his application for leave to appeal against conviction whereas the applicant acted in person on his application for leave to appeal against sentence.

The Prosecution Case

7.  The victim (Mr Yim), assisted by three employees (Chan FY, Leung and Chan WM), operated the Ah Yuen Restaurant and Cake Shop (“the restaurant”) on the podium of Shek Ping House, Long Ping Estate in Yuen Long, N.T.

8.  On 20 January 2007, the applicant, together with four youngsters, came to the restaurant and occupied a table. When Chan FY tried to stop the applicant from smoking, the applicant retorted. He asked Chan FY if she knew his identity before telling her to get her boss to see him. When Leung approached, the applicant shouted out aloud, “Who said a Triad Big Brother cannot smoke? Get your boss to me and ask him if he wants to close the door and cease business!” In fear, Chan WM took the order from the applicant.

9.  Wan Chi Hung then appeared to join the group and they ordered food and chatted aloud. On seeing Mr Yim, they yelled out and asked him to come over. The applicant asked. “Has anything gone wrong? How is it that a Big Brother is not allowed to smoke?” On hearing that smoking had been banned, the applicant picked up the bill to hand to Mr Yim, telling him to settle it. When Mr Yim asked why, the applicant said, “You should know it. If you don’t pay for this bill, you know what is going to happen.”

10.  Wan Chi Hung also said words to the effect that the applicant was a follower of “Hong Guo”.

11.  Mr Yim became scared and walked out of the restaurant to call the police with his mobile phone. In the meantime, the applicant threw chopsticks and bowls, and splashed some tea on the ground before telling the other youngsters to leave. One chopstick and one plastic bowl, worth $4, were damaged.

12.  The applicant and Wan Chi Hung were arrested and taken back to Yuen Long Police Station. There was an initial interview, referred to as a debriefing session, in which DPC 49147 asked the applicant why he was at the restaurant. The applicant replied that he was just buying food and nothing else happened.

13.  DPC 49147 said that the applicant was then referred to the Anti Triad Squad for further investigation.

14.  According to the prosecution, the applicant admitted under caution in four subsequent interviews that: (1) he had demanded Mr Yim to settle the bill after telling him that he should know what would happen if he refused, namely that he would cause trouble; (2) he was a follower of Fei Wah of 14K Ngai Group, having joined it in 2000 and had maintained a regular contact with him until December 2006; (c) he damaged the chopstick and bowl in a fit of rage because of a quarrel with Wan Chi Hung; and (d) he had collected a total of $9,900 “laisee money” from Mr Yim, $500 at Lunar New Year, $300 on each of the Mid Autumn and the Dragon Boat Festivals, and Mr Yim gave him that money voluntarily as they knew each other.

15.  Mr Yim subsequently informed the police that since 1991, a man called Hong Guo had been regularly collecting small sums of money from him as “laisee” or protection money.

16.  Mr Yim further told the police that since or about 1997, the applicant and Wan Chi Hung, in place of Hong Guo, had been demanding “laisees” from him three times a year, $500 at Lunar New Year, $300 each at the Mid Autumn Festival and the Dragon Boat Festival, and that on each of those occasions, the applicant and/or Wan Chi Hung would say, “I am from Wang Chau Tai Huen @ Sei Ngan Hong. I represent my Big Brother to come to collect a‘laisee’. You know what this is all about.” 

17.  Mr Yim said that over the years, he had paid a total of $3,000 to $4,000 to the applicant and his brother.

The Defence Case

18.  The applicant denied the prosecution’s allegation against him. He said on 20 January 2007, he was smoking in the restaurant, but had not uttered any threat or demanded Mr Yim to settle his bill. The applicant further alleged that the police had threatened and assaulted him before and during the interviews. The applicant said he did not make the admissions as alleged, but only signed the record of the interviews because of the violence imposed on him by the police.

19.  The applicant gave evidence both on the special issue and the general issue.

The Judge’s Findings

20.  The judge rejected the applicant’s allegation against the police and concluded that the applicant made the admissions as set out in the record of interviews freely and voluntarily. The judge admitted the record of interviews as evidence against the applicant and attached full weight to them. The judge rejected the applicant’s explanation that Mr Yim gave him the money of his own free will.

21.  The judge also rejected the applicant’s evidence on the general issue and accepted that of Mr Yim, Chan FY, Leung and Chan WM. In particular, the judge accepted Mr Yim’s evidence that the applicant did threaten him to settle the bill or else there would be trouble to the restaurant. The judge concluded that such threat, coupled with the applicant’s triad background, and his general behaviour, constituted an unwarranted demand with menaces.

22.  The judge found that the applicant, together with Wan Chi Hung had, for about 10 years between 1997 and 2006, regularly demanded from Mr Yim at major festivals, sums of $500 and $300 with menaces, namely triad association and causing trouble to his business. The judge concluded that such demands were made in pursuance to a joint enterprise between the applicant and Wan Chi Hung.

23.  The judge further found that the conspiracy to blackmail had resulted in a total sum of $3,000 to $4,000 that the applicant and Wan Chi Hung had dishonestly appropriated, but not $9,900 set out in the 3^rd charge.

24.  The judge, relying on the applicant’s conduct and the admissions he made at the interviews, concluded that the applicant was indeed a member of a triad society.

25.  The judge therefore also convicted the applicant of the 1^st, 2^nd, 3^rd and 5^th charges.

Grounds of Appeal

26.  Mr Bernard Yuen argued two main grounds of appeal. Mr Yuen suggested that the judge should not have admitted the four records of interviews as evidence because of oppression and unfairness, and without such admissions, there would be insufficient evidence to prove at least the 1^st and the 2^nd charges.

27.  Mr Yuen emphasized that prior to the four interviews in which the applicant was said to have made confession to the five charges, the applicant had in fact denied the police allegations against him. However, in breach of the Rules and Directions of the Secretary for Security, he was subjected to an informal interview in the form of a “debriefing session”, conducted by DPC 49147, for which no record was made.

28.  Mr Yuen suggested that any admission allegedly made by the applicant after the “debriefing session” must be tainted and should not have been admitted as evidence.

29.  Mr Yuen further argued that there was, in any event, insufficient evidence to support the 5^th charge of being a member of a triad society. Mr Yuen suggested that the 2^nd record of interview contained only a bald admission of being a member of a triad society, which, in the absence of other proof of membership, was insufficient to support a charge of triad membership.Mr Yuen relied on R v Wong Tim Leung & Others (unreported HCMA 981/1995).

30.  Mr Yuen emphasized that the applicant only admitted to have joined the 14K triad society in 2000 and, in the absence of a continuation of the membership, there was insufficient evidence to show that he remained a member in January 2007, as alleged in the 5^th charge.

Discussion

31.  The “debriefing session” took place shortly after midnight on 21 January 2007. According to DPC 49147, he only tried to understand the applicant’s background in order to decide if the case should be taken over by the Anti Triad Squad of Yuen Long as there were then many cases of criminal intimidation and blackmail.

32.  DPC 49147 emphasized that he only asked the applicant, “What happened? Why were you arrested?” to which the applicant replied “Only having food.” The applicant was then referred to the Anti Triad Squad and interviewed.

33.  The judge found that DPC 49147 offered no inducement and applied no pressure to the applicant to make any admission at any stage.

34.  We agree with Ms Teresa Kam, counsel for the respondent, that the “debriefing session” could not, in the circumstances, constitute any ground for excluding the record of the interviews that took place subsequently. There was no threat or inducement. There was no fear of prejudice or hope of advantage.

35.  The applicant made admissions in the interviews, but at the same time also offered innocent explanations.

36.  The judge had considered carefully the circumstances in which the applicant made the admissions as contained in the record of the interviews.

37.  The judge was entitled to accept the evidence of the police officers and reject that of the applicant. The judge was entitled to conclude that the applicant made the admissions freely and voluntarily.

38.  A breach of the Rules and Direction can be a reason for excluding cautioned statements, but this is essentially a matter for the trial judge.

39.  We fail to see, in the circumstances of the case, how it is unfair to admit the record of the interviews as evidence. We have no reason to interfere with the judge’s decision on this matter.

40.  Contrary to Mr Yuen’s submission, the evidence against the applicant in connection with the 5^th charge of being a member of a triad society consisted not just a “bald admission”.

41.  When the applicant confronted the victims on 20 January 2007, he asked Chan FY if she knew his identity. He further said, “Who said a Triad Big Brother cannot smoke?” The applicant further asked Mr Yim, “Has anything gone wrong? How is it that a Big Brother is not allowed to smoke?”

42.  In the presence of the applicant, his brother also said that the applicant was a follower of “Hong Guo”. Over a period of 10 years, the applicant, together with his brother, had regularly made warranted demands for money from Mr Yim with menaces.

43.  The applicant’s behaviour throughout his encounter with the victims, including what he said and did on 20 January 2007, coupled with the admissions he made at the interviews, namely that he was a follower of Fei Wah of 14K Ngai Group, having joined it in 2000 and had maintained a regular contact with him until December 2006, clearly showed that he was a member of a triad society. There was evidence that the applicant “participated in criminal activities of a type commonly perpetrated by triad members” and such evidence, too, supported the inference that the applicant was a member of a triad society.

44.  The judge was right to conclude, based on the entirety of the evidence, that the applicant was indeed a member of a triad society.

45.  We do not find the conviction against the applicant in any way unsafe or unsatisfactory. He was properly convicted and his application for leave to appeal against conviction is dismissed.

Sentence

46.  Apart from stating that the sentence is too heavy, the applicant had not, in his written submissions, put forward any ground in support of his application for leave to appeal against sentence. What the applicant said in his oral submission was completely incomprehensible, possibly due to his psychiatric problem. The applicant maintained that he was not guilty of the charges.

47.  We wish to state that triad members bullying innocent and law abiding citizens of our society is a serious matter. Small businessmen such as Mr Yim must be protected from triad intimidation.

48.  For a period of almost 10 years, the applicant and his accomplices bullied Mr Yim, treating him as if he was an ATM machine. The applicant was the leader of the group, regularly harassing and threatening Mr Yim and his staff. It requires little imagination to appreciate the fear and worry that they must have been put through.

49.  The applicant has over 10 previous convictions involving dishonesty, violence, gambling and drugs.

50.  In our view, the total sentence of 3 years and 9 months is not a day too long. His application for leave to appeal against sentence is also dismissed.

Hon Wright J:

51.  I have had the advantage of reading the judgment in draft. I agree that the appeal against conviction and sentence should be dismissed for the reasons given.

52.  I wish to add to what has been said regarding the criticism expressed, in trenchant terms, by the judge in regard to the circumstances in which the applicant's interviews came to be recorded in writing. He highlights a problem faced not infrequently by trial judges and magistrates. The admissibility of the records of interviews was challenged and in this connection the judge said:

“12.  There is a challenge to admissibility of the formal interviews based on allegations of threats, inducements and actual violence by up to 10 police officers in the interview room together with the manufacture of the written record of interview. I am therefore dismayed to discover that the interviews of the defendant in this case took place in a fully equipped, operational video interview room, with the equipment switched off.

13.   This is by no means the first time I have come across a situation of a challenge to an interview where the interview has been recorded other than by video, despite such facilities being available.... The government, at huge public expense, with the eventual approval of everyone involved in the administration of justice... has installed video interview equipment in police stations across the whole territory.... The equipment is there primarily to protect suspects from impropriety by police officers and police officers from unfounded allegations of impropriety towards suspects; and secondly to minimise the large amount of time spent in court litigating issues of admissibility. And yet, in this case, as in so many, it was not used. This demands the question "Why?" The given answer is that the defendant was offered a choice and he opted to have his interview recorded in writing....”

53.  My experience in criminal trial courts since the introduction of audiovisual recording equipment into police stations accords with that of the judge. It must be said, however, that this situation appears to arise almost exclusively where the interviewer, be he a member of the police force, ICAC or any other enforcement agency, offers the suspect a choice of the mode of recording of the interview.

54.  A suspect has an absolute right to decline to be interviewed. He also has a right to agree to be interviewed subject to any conditions which he may stipulate, for example that the interview commence only after the arrival of his legal representative: he would also be entitled, at the time of giving his consent, to impose a condition that the interview be recorded in a particular manner.

55.  Conversely, once a suspect has given unconditional consent to being interviewed, as happens in the overwhelming majority of cases, it is then wholly unnecessary for a separate and specific consent to be obtained from him as to the mode of recording that interview. The practice of routinely asking a suspect whether he consents to the interview being video recorded is to be firmly discouraged: recording of interviews other than by audiovisual means should occur only in exceptional circumstances.

56.  As the judge observed, the underlying purpose in equipping interview rooms with video recording facilities was to provide protection, not only for the suspected person against inappropriate conduct of any form on the part of the investigating agency but equally to provide protection to members of that agency against unfounded allegations of impropriety. The added benefit to be derived from this situation was anticipated to be a reduction in the number of challenges to the admissibility in criminal trials of records of interview.

57.  These objectives are frustrated by the continued misconception of the necessity to obtain a suspect's further consent to the mode of recording the interview in which he has already agreed to participate.

58.  That is not to say that, without exception, the exclusive acceptable mode of recording an interview is in a form which allows visual reproduction of the interview.

59.  It is neither difficult nor fanciful to envisage situations in which a suspect may indicate, when agreeing to be interviewed, that he does not wish any images of his appearance to be recorded: a member of a particular religion or sect may have strong beliefs that prevent the reproduction of his appearance; a person who is hypersensitive to his appearance by virtue of disfigurement may not wish that to be recorded; the suspected paedophile, remorseful of his conduct, may be reluctant. In such a situation that person may be perfectly willing to be interviewed and for the interview to be audio recorded or recorded by other nongraphical means: it would not be improper for such a course to be followed although, inevitably, there may be an impact on proof of voluntariness should such issue be raised subsequently.

60.  The norm should be for all interviews to be recorded by audiovisual means but in circumstances where compelling reason exists, it would be inappropriate and contrary to the interests of justice not only to deprive the investigating agency of properly conducting its investigation but also to deprive the suspect of his opportunity of providing an explanation, whether it be inculpatory or exculpatory, at the earliest opportunity.

61.  There is one further aspect of recording of interviews which creates difficulty yet is easily avoided. A suspect is invariably taken into an interview room and administrative procedures are executed before the audiovisual recording equipment is activated. Allegations are regularly made when challenging the admissibility of the record of interview that it is during this period when inducements, threats or assaults were visited upon the suspect. This could be avoided simply by ensuring that the audiovisual equipment is activated prior to the suspect being taken into the interview.