HKSAR v. YIM SHEK WO

HCCC 164/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 164OF 2017

(ON COMMITTAL FROM FLCC 2184 OF 2016)

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RULING ON ADMISSIBILITY:
ADMISSIONS AGAINST INTEREST

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Ruling

1.  On 12 September 2017, I ruled on an objection to the admissibility of admissions attributed to the Accused detailed below.  I considered that it was a case which mandated more detailed rulings in view of the nature of the objections and the evidence which arose in the case.  Accordingly, I ruled as follows:

“ The Accused objects to the reception into evidence at his trial of the following:

(1) A verbal admission made at the Customs Control Point at Shau Tau Kok on 27 May 2016;

(2) the post‑record acknowledging the accuracy of the verbal admission later in the evening of 27 May 2016; and

(3) the recording and accompanying transcripts of the video recorded interview on 28 May 2016.

I consider that the nature of the objections and the evidence presented by the parties merit a reasoned ruling.  However, for the efficient management of the proceedings, it is not possible for me to deliver a reasoned ruling at the moment.  I propose announce my decision now and give my reasons for that decision at a later date.  My decision is that having considered the objections made to the reception into evidence of the foregoing items of evidence, having carefully considered the evidence called by the prosecution and evidence given by the Accused and having taken into account submissions on behalf of both the prosecution and the Accused I am satisfied beyond reasonable doubt that the foregoing items of evidence are voluntary in the sense that this term is understood in the law.  I decline to refuse to admit those items of evidence in the exercise of my discretion.”

Objections to admissibility of admissions against interest

2.  The Accused was charged on indictment with trafficking in 5.95 kg of powder containing 3.01 kg of ketamine.  The allegation against him is that on 27 May 2016 he drove a vehicle the registration mark NY 1278 from mainland China to Hong Kong.  He presented for customs inspection at the Sha Tau Kok Control Point.  His vehicle was directed to one of the examination kiosks where the vehicle was examined.  The case for the prosecution is that in the spare wheel of the vehicle was found the drugs which are the subject of the indictment.  What attracted the attention of the customs officers to the spare wheel was, amongst other things, an indication of interest by a drug sniffing dog and the fact that the spare wheel was not inflated.

3.  Eventually, Customs Officer 98221, a Mr Wong Sze Yung who had examined the suspect spare tyre came to the conclusion that there were drugs inside the tyre.  In consequence of that he said to the Accused who was sitting nearby that he was under arrest in contravention of the Dangerous Drugs Ordinance.  Customs Officer 98221 then cautioned the Accused who admitted that the substance inside the spare tyre from the vehicle driven by him was ketamine.  The Accused is said to have admitted that he carried the drugs for a friend for a reward of $20,000.  The Accused is also said to have admitted that he put the ketamine in the spare tyre himself.

4.  Later on, at 9:45 pm on 27 May 2016 Customs Officer 98221 made a post record of what he had said to the Accused at the time of the arrest and caution.  The case for the prosecution is that the Accused acknowledged that he had made the admissions attributed to him and signed his name to that effect.

5.  It is manifest that the operation at the customs control point at Sha Tau Kok had an element of planning about it because officers of the Narcotics Bureau of the Hong Kong Police were also involved and in due course they took over custody of the Accused.

6.  The Narcotics Bureau officers took the Accused to the Duty Officer at Sha Tau Kok Police Station and then proceeded to Police Headquarters where a video recorded interview took place between 2:04 am and 2:37 am on 28 May 2016 in which the Accused made a series of admissions and the prosecution seek to produce in evidence a recording of the interview accompanied by a transcript thereof.

Objections to evidence

7.  The Accused objects to the reception into evidence of:

(1)   verbal admission made at the Customs Control Point at Sha Tau Kok on 27 May 2016;

(2)   the post‑record acknowledging the accuracy of the verbal admission later in the evening of 27 May 2016; and

(3)   the recording and accompanying transcripts of the video recorded interview on 28 May 2016.

8.  In support of the application, counsel for the Accused has provided particulars of objection which allege a variety of threats and inducements.  In particular, the Accused alleges:

(1)   A threat on the part of DPC 58500 to the effect that if the Accused did not reveal whether drugs were, he would “suffer for a long time.”

(2)   A threat on the part of DSI Charm and DPC 58500 to the effect that if the Accused did not admit the drugs were his he would be sent back to the mainland to be dealt with.  There was, in this context, an additional inducement to admit to the effect that if there was an admission, the police would mitigate on behalf of the Accused.

(3)   At the scene where the vehicle was being examined, the Accused was feeling dizzy and unwell — he having a history of asthma and depression.  He requested to see both the doctor and a lawyer and DSI Charm grabbed the Accused repeated the threat that the Accused might be sent back to the mainland if he did not cooperate.  In this incident, DPC 58500 told the Accused what he was supposed to say and that after the police took over the case from the Customs, the Accused will be allowed to see a doctor, a lawyer and his family members.

(4)   Following the making of admissions to a member of the Customs service, the Accused again requested to see a doctor and a lawyer and this request was made to Detective Sergeant 47124.  The request was refused and the Detective Sergeant threatened to send the Accused back to the mainland to be dealt with if he caused trouble.  In this incident, there was the additional inducement to the Accused that if he satisfactorily completed a video interview on the part of the police he would be allowed to see a doctor, a lawyer and his family members.

(5)   The Accused was taken to a van accompanied by, amongst others, DPC 2133.  That officer gave the Accused a cigarette to smoke and that he now need not worry about being taken back to the mainland.

(6)   DPC 2133 told the Accused that as he had been cooperative he would be given the meal box of his choice and that after he had satisfactorily completed a video recorded interview he would be allowed to see a doctor, a lawyer and family members.

(7)   Before the video recorded interview was commenced DSPC 34383 and DPC 6578 coached the Accused as to the answers he should give.

A voir dire was conducted to determine the admissibility of the 3 areas of admission against interest attributed to the Accused.

Principles which inform the disposition of an objection to the reception into evidence of admissions against interest

9.  The principles which inform the disposition of objections to the reception into evidence of admissions against interest are well‑known.  The principle is that no statement by an Accused is admissible against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, excited or held out by a person in authority, or by oppression.  That principle was enunciated in a long line of authorities which include the Privy Council in Ibrahim v R [1914] AC 599, 609 and DPP v Ping Lin [1976] AC 574, 600.  The principles were authoritatively restated by the Court of Final Appeal in SJ v Lam Tat Ming & Another (2000) 3 HKCFAR 168.

10.  It is also well recognised that the concept of voluntariness established in the authorities is a restricted one.  In SJvLam Tat Ming & Another (above), the Court of Final Appeal recognise the restricted nature of the definition and, in that regard, Li CJ observed:

“ Although the principles relating to voluntariness were developed in a historical context when the accused had few if any safeguards, they are well settled. Whilst judges should not extend them, they must not whittle them down.”

11.  In the context of this case it is necessary to consider and apply the definition of oppression.  The meaning of oppression in this context is either words or conduct by a person in authority which tends to sap and does sap the will of the Accused so that he makes the admission or confession and includes questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent: R v Priestley (1965) 51 Cr App R 1, and R v Prager (1972)56 Cr App R 151.  It was endorsed by Li CJ in SJ v Lam Tat Ming & Another (above), and HKSAR v Leung Chiu Ming [2001] 1 HKLRD 272.  The issue of whether or not in any case there has been oppression that has sapped the will of an Accused is essentially a question of fact.  In Burut & Ors v PP of Brunei [1995] 2 HKC 305 Lord Steyn accepted that the test for oppression was “conduct calculated to sap the will of the person being interviewed.”

12.  In addition, the Court has a residual discretion to exclude an otherwise voluntary statement (in the sense described in the foregoing paragraph) if the reception into evidence of such a statement might produce an unfair trial: SJ v Lam Tat Ming & Another (above).

13.  In the context of the present case, the essence of the contentions on behalf of the Accused are that the conduct of the police was a combination of inducements (confess and you can see a doctor, lawyer and family members) threats (confess or we will return you to the mainland authorities and let them deal with you — a possibility which included the implied suggestion that the Accused would, in the hands of those authorities,be susceptible to the death penalty) oppression (a combination of the threats and inducements just outlined) and an invitation to exclude the admissions on the premise that even if the admissions were voluntary in the extended sense of including not being induced by oppression, the admissions ought nonetheless to be excluded on the basis that the Accused was so unfit by reason of his medical condition that it would be unfair to try him on the basis of those admissions.

14.  There is an additional dimension to this case which came out in the evidence which was not outlined in the witness statements of any of the police and is apparent only from their oral testimony and the review of the CCTV of the area where the vehicle was inspected following its presentation at the Customs & Excise control point.  It is obvious from viewing the CCTV record and from the testimony of the relevant police officers that at some early stage after the Customs Officers is that during their examination of the vehicle driven by the Accused, he became visibly upset and was sweating profusely and was quite wobbly in his legs.  So much so that while he was standing to the left of the vehicle there was an element of necessity that he be supported by the police officers nearby.  This culminated in his being taken to a slightly different location where a chair or stool was provided for him and he watched a good deal of the examination proceedings while sitting on the stool.  This was the trigger for part of the improper conduct upon the premise: confess and we will get you to a doctor.  That is also relevant to whether the Accused was suitably fit to make appropriate decisions as to whether to speak or to remain silent.  The other dimension to this conduct is that it is, in a sense, capable of being an admission in itself in the sense that the case for the prosecution is that the timing of the demise of the health of the Accused occurred at precisely the time when it would have been obvious to anyone who knew what was hidden within parts of the vehicle driven by the Accused that the officers were getting very close to uncovering the hidden ketamine.  It is well recognised that a person may make an admission by conduct.  On the facts of this case the relevant conduct — the outbreak of profuse sweating and the unsteadiness of the Accused on his legs — occurred well before either the police or the Customs Officers could reasonably have been expected to administer a caution.  In many respects, the case for the prosecution is that this makes the response more cogent.  The reason, so submits the prosecution, is that the conduct is such as to indicate before the Police and Customs Officers knew what was there and where it was that the Accused knew what was there and where it was.

Evidence

15.  The case for the prosecution is that the Accused driving a vehicle NY 1278 arrived at the Customs & Excise control point at Sha Tau Kok for clearance.  At that stage, necessarily, the Accused and the vehicle that he was driving must have passed through the immigration processes both of the People’s Republic of China and of the Hong Kong Special Administrative Region.  The Accused and the vehicle arrived at about 7:36 pm.

16.  There is a CCTV recording of events at the inspection kiosk where the Accused and the vehicle that he was driving presented for customs clearance.  In addition, there is in exhibit P41 a very helpful set of extracts from that CCTV and a self‑explanatory legend as to the sequence of events.  It is appropriate that I should note with gratitude the supply of an electronic copy of the CCTV record.  The use of exhibit P41 has also made my task substantially easier.

17.  Initially, upon arrival at the inspection kiosk, the Accused got out of the vehicle that he was driving and the only law enforcement agency which appeared to be present at the scene at this time were officers of the Customs & Excise Service.  At 7:39 pm we see officers of the Narcotics Bureau arriving at the scene.  The inspection of the vehicle then continued and a feature of that inspection was the employment of a sniffer dog which was, apparently, capable of alerting officers to the possible presence of dangerous drugs.  The dog arrived at about 7:41 pm and the Accused is depicted in the CCTV and in the photographs in exhibit P41 as being somewhat unsteady on his feet shortly after the arrival of the dog.  By 7:46 pm the dog was seen to be apparently interested in something underneath the vehicle.  Following that, the Accused, still apparently unsteady on his feet was provided with a stool upon which to sit.  By 7:50 pm the spare tyre had been taken from underneath the vehicle and was in due course placed on the inspection platform.

18.  By this time there were a number of Narcotics Bureau officers around the van and, more specifically, around the Accused.  The officers of the Customs & Excise Service continued to search the van even though it had become apparent by this stage that there was something highly suspicious concealed in the tyre of the spare wheel.  What attracted the attention of the Customs Officers was the fact that the spare tyre did not appear to be inflated and the tyre was outside the metal rim.  Inside the tyre could be seen some white crystalline substance which they suspected to be ketamine.  Finally, at 8:05 pm Customs Officer 98221 came to where the Accused was sitting and arrested him and cautioned him. The allegation by Customs Officer 98221 in the record of the arrest of the Accused was that he was suspected of being connected with the white crystalline substances found inside the spare tyre at the bottom of the rear of the vehicle.  Customs Officer 98221 arrested on that basis.  It is significant that this Officer did not mention that he suspected that the white crystalline substance was ketamine.

19.  Customs Officer 98221 then asked a series of questions of the Accused.  They were:

(1)   a question as to what the substance was.  The Accused answered that it was ketamine;

(2)   the question was asked as to who the stuff belong to.  The answer given by the Accused was that he carried it for a friend;

(3)   the Accused was asked whether he did so for reward and the Accused answered that it was for a reward of $20,000; and

(4)   the Accused admitted that he put the ketamine in the tyre himself.

20.  The Accused remained in the vicinity of the spare tyre containing the ketamine until he was taken to a police van at 9:02 pm.  He remained there for 2 minutes and was then taken by the Narcotics Bureau officers to inside the Customs & Excise Service building at Sha Tau Kok where Customs Officer 98221 gave to the Accused what is a Notice to Persons in Custody.  He says this was shown to the Accused and read over and explained and following that the Accused signed to acknowledge receipt of the notice.  Customs Officer 98221 then undertook the process of reducing to writing the process of arrest and caution that had occurred earlier together with the questions asked by him in the answers given by the Accused.  That was done in the notebook of Customs Officer 98221 and the Accused signed to acknowledge that he had said these things.  He was given the opportunity according to the record in the notebook to add alter or correct anything in the notebook.

21.  It is to be noted that the times recorded for the events in relation to the arrest and caution together with the questioning by Customs Officer 98221 are different to that imprinted on the CCTV.  The difference appears to be about 20 minutes.  Customs Officer 98221 says that the time he recorded on the post‑entry of the arrest and caution was derived from his watch.  Nothing has been made of the difference between the times recorded in the notebook and the times displayed on the CCTV and, it is no doubt obvious, I have been using in these reasons the times imprinted on the CCTV.  This is not meant to be an implied finding that these times are accurate.  At best, they simply give a sequence of events from start to finish in relation to the events at the checkpoint so far as they relate to the Accused and that is very helpful.  Certainly nothing is meant to imply that I question the accuracy of the times observed by Customs Officer 98221.  As the case unfolded, no real point was taken in relation to this.

22.  Reverting to the time sequence imprinted upon the CCTV, we see the Accused being brought back to the location where the vehicle that he was driving was and at 9:16 pm he is seen to be witnessing the search of the spare tyre.  The Accused is, at this stage standing and remains standing throughout that process.

23.  The Accused was then taken by the Narcotics Bureau officers to Sha Tau Kok Police Station and a report was made to the Duty Officer.  From that point the Accused was taken by the Narcotics Bureau officers to Police Headquarters where the Narcotics Bureau has its offices.  It appears they arrived at 12:05 am on 28 May 2016.  The case for the prosecution is that for the next 2 hours (or thereabouts) the Accused had a meal and the officers undertook, amongst other things, the packing of the drugs into police envelopes.  The Accused was also fingerprinted.

24.  At 1:55 am on 28 May 2016, the police say that the Accused was given a Notice to Persons in Custody or Involved in Police Enquiries.  This was signed by the Accused, so the document asserts, at 2 am.  DSPC 34383 also signed the document.  In broad terms, that Notice asserts a series of rights which are essentially the same as those in the Notice given to the Accused prior to the post‑recording of the arrest and caution and questions asked and answers given by the Accused at the Customs post.  The rights are not identical and the language used to describe them is also not identical but the essence is the same.  It is not intended to provide a close textual comparison but possibly one of the major items is that the Police Notice includes a right to seek medical attention whereas that is absent from the Customs Notice.

25.  At 2:04 am the police conducted a video recorded interview which lasted until 2:37 am.  If the video is to be taken at face value, the Accused accepts that he was cautioned and goes on to make substantial admissions as to his involvement in the carrying of a very large quantity of ketamine into Hong Kong concealed in the spare tyre of the vehicle he was driving.  In the course of the questioning in the video recorded interview the Accused was asked about his physical condition on 2 occasions.  The first was a general enquiry and there is a further specific enquiry at counter 181 which refers to one of the officers declaring that he had noticed the Accused to be blinking during the course of showing the exhibits.  The exhibits were shown some minutes earlier at counter 131.  On each occasion the Accused was asked whether he was all right and whether he needed to take a rest and his reply was that this was not necessary.

26.  The evidence was that this was a joint operation of the Customs & Excise Service and the Hong Kong Police and, in particular in the latter regard the Narcotics Bureau.  The essence of the complaints of mistreatment and misconduct visited upon the Accused are focused on the conduct of officers of the Narcotics Bureau.  The essence of those complaints is that there was a concerted effort to threaten and intimidate the Accused and there were a series of inducements offered to the Accused if he cooperated and made admissions in accordance with the approach proposed by certain of those officers.  It was put to various officers that they had said that unless the Accused made admissions in accordance with what they propose, the Accused would be taken back over the border and mainland officials would conduct their own investigation into drug trafficking.  It was asserted in various ways and in various degrees that this be the case the Accused was exposed to the possibility of the death penalty.  It was also alleged that cooperation would mean that the case would be dealt with within the Hong Kong jurisdiction and this would involve lesser penalties and indeed, at one stage, it was suggested that the Narcotics Bureau officers would mitigate on behalf of the Accused.  In this regard, the Accused complains that the officers quickly became aware that the Accused was feeling significantly unwell and that he wanted to see a doctor to deal with his physical condition and the officers made it a condition of being permitted to see a doctor that the Accused cooperate with them.  The Accused also asserted that he wished to see a lawyer. According to the Accused, the response of the relevant Narcotics Bureau officers was essentially the same: cooperation first lawyer later.  There were also said to be inducements offered that if there was cooperation the Accused would be allowed to see his family members.

27.  Mr HY Wong, Counsel for the Accused, skilfully, carefully and thoroughly and those officers were given every opportunity to answer the allegations of misconduct made by the Accused.

28.  The officers denied the allegations of threats and inducements and denied seeking to take advantage of the physical condition of the Accused.  Indeed, each of the officers who had specific responsibility for dealing with the Accused while he was located nearby to the vehicle that he had driven across the border asserted that at various times and in various circumstances they had actually asked the Accused whether he was all right and whether he required medical advice.  These officers testified that the Accused had said that he did not need the attention of a doctor.

29.  I have in the previous paragraphs attempted to identify the essential elements of the case for the prosecution and the allegations of misconduct levelled at officers of the Narcotics Bureau.  It is not intended in these reasons to outline in sequence and detail each of the allegations and the responses of the officers.

30.  The Accused testified.  He testified that this was the 4^th occasion upon which he had travelled to and from the mainland on 27 May 2016. He was engaged in the business of smuggling new tyres across the border which would be placed on the wheels of the vehicle that he was driving and the spare tyre and once across the border these would be swapped for inferior tyres for the return journey.

31.  The Accused testified that he was astounded that dangerous drugs were found in the vehicle that he was driving.  He explicitly denied, so he said, to the relevant law enforcement officials that he had anything to do with the transport of the drugs.  He said that that throughout the day he had been feeling unwell and dizzy but despite that had travelled back and forth across the border in the manner he described.  He says that when he got out of the vehicle he was feeling unwell and dizzy and that so unwell was he that he requested medical assistance from the officers at the scene.  This was refused and the essence of their reply in this regard was cooperate first, medical attention afterwards.  He also requested to seek legal advice and the essence of the reply in this regard was fundamentally the same.  At a later stage, concern about visiting his family members was added to this sequence.  In addition to that he was told on a number of occasions from a number of officers that if he did not cooperate and make admissions that he would be taken across the border to face the mainland authorities with the implied dismal consequences of such an investigation.  The Narcotics Bureau officers essentially told him what to say when he was arrested, cautioned and questioned by the Customs & Excise Officers and he complied with what they said.  He said that he was intimidated and frightened by the prospect of being placed across the border and was induced to give the admissions he gave on the premise that after he had cooperated he would be given medical attention, be allowed to see a lawyer and be allowed to see his family members.

32.  He told the court that in addition to suffering from what he believed to be the flu, he also was a long‑term asthmatic and suffered from depression.  He said that in relation to his asthma he was treated by the use of an inhaler.  Such inhalers are well known to asthmatics and the persons who surround them.  He was not able to shed much light on the medicine he had been given in relation to depression.  He said he had been treated by a psychiatrist in the government hospital system and was seeking medical assistance in relation to this every 2 or 3 months.  Nothing in the course of his testimony revealed whether he had taken his medication on the day or whether it was necessary to do so.  He said that his inhaler was not in the vehicle that he had driven and was located in his own vehicle which was elsewhere in Hong Kong.

33.  The combination of threats and inducements was such that he was prepared to cooperate with the police and make admissions to the Customs & Excise officer who arrested him and then confirmed the terms of the arrest and caution and questions asked and answers given in the post record.  Further, he was coached by various officers as to what to say to the Customs & Excise officer and he complied as a result of the inducements and threats visited upon him.  It is a feature of the case for the Accused that the threats, inducements and other acts of misconduct were both consistent and persistent and had a cumulative effect.  This is important because by the time he got to Police Headquarters and, the offices of the Narcotics Bureau, he submitted himself to being coached about critical components of a forthcoming video recorded interview.

34.  The video recorded interview was, so the Accused said, the culmination of the coaching of the officers who question him during that interview.  Part of it was specifically and directly coached and some of it was such that the Accused was invited to improvise his answers to ensure that they were meaningless.  The implication of this was that this was to ensure that the Narcotics Bureau officers have nothing to further investigate.  Implication of this appeared to be that they were anxious to limit the investigation to simply the Accused.

35.  The Accused told the court that following the video recorded interview he was taken to his home and later on was allowed to seek medical attention.  The implication of what the Accused was saying in this regard appeared to be that the Narcotics Bureau officers were true to their word in permitting him to see his family members and ultimately to seek medical attention.  In relation to the medical attention he was given medicine for his flu symptoms.  He was also given an inhaler but the medical officer was not prepared to prescribe medicine for his depression because such medicine was unavailable at the hospital that he attended.

36.  The Accused was cross examined upon the premise that the police officers had not misconducted themselves in the manner alleged by the Accused.  The thrust of the cross‑examination was that a good deal of the complaints of the Accused were illogical and not simply unsupported but unsupportable.  It was pointed out that until the sniffer dog undertook its actions at the vehicle driven by the Accused at the customs control point that the Accused was walking around in apparent good health and it was only after, in effect, the investigation got serious that the Accused started to perspire become unsteady on his feet.

Evaluation

37.  In evaluating the foregoing evidence, it is important to bear in mind that the law is that the burden of proof of the voluntariness of admissions against interest attributed to an accused person is on the prosecution.  Indeed, it is for the prosecution to prove beyond reasonable doubt that the admissions against interest attributed to the Accused were voluntary.  Suitably modified, I take the same approach as to the burden and standard of proof in relation to the invocation of the power of the court to exclude as a matter of discretion any admission found to be voluntary.

38.  Overall, I found the Customs and Police officers to be impressive witnesses.  That there were occasional contradictions and oddities which were to be expected and did not detract from the overall presentation.  It is true that even a casual examination of the CCTV record of the police presence at the customs checkpoint reveals that the police were talking more often and, so Mr Wong, submits, this is consistent with the version proffered by the Accused because some of those words could well have been the kind of inducements and threats to which the Accused testified.  It was pointed out that by the time the Narcotics Bureau officers came on the scene the Accused was well and truly in Hong Kong territory and the notion that the police had the power to simply dump the Accused back over the border was both wrong in law and impractical because it would have required putting the Accused back through Hong Kong immigration.  However, while this position is unanswerably sound in law, and, as a matter of practicality unlikely, it does not follow that the Accused perceived things that way.  That said, that such a procedure was for all practical and legal purposes a non‑starter is some small support for the unlikelihood that it was said.  In the final result, it probably does not take the prosecution case very far.  What is necessary is to examine whether the officers were telling the truth in their denial of making the threats and inducements attributed to them by the Accused.

39.  The fact that the officers were suggesting to the Accused that he admit that the drug was ketamine is unlikely given they had no idea whether it was in fact ketamine.  That said, it is obvious that the police were present at the customs checkpoint because they had information.  The nature of the information was not part of the evidence in this limited proceeding.  Nevertheless, as Mr Wong points out, it is not greatly beyond the bounds of possibility that the information contained assertions that the drug being carried across the border would be ketamine so it may be that the officers who, on the version given by the Accused, coached him at the customs checkpoint were not taking such a big risk. Ultimately, the point, even if it is a theoretically good one, does not take the matter very far.  The suggestion in the VRI of coaching as alleged by the Accused that he make up stuff which is uncheckable sounds unlikely in the extreme.

40.  The officers who testified for the prosecution gave their evidence in a generally coherent, straightforward and logical manner.  They were obviously an experienced group of officers who knew what they were about.

41.  The testimony of the Accused did not impress me at all.  He tried to make far, far too much of the fact that he was unsteady on his feet and sweating profusely at one stage.  That episode of illness which is clearly well‑established lasted for some minutes but it is plain that the Accused recovered his equilibrium once he was given the opportunity to sit down.  He was somewhat vague, and I find deliberately so, as to the cause of his difficulties.  He seemed to be suggesting that the problem he had when he became unwell for a few minutes was due to the flu.  That has some real problems when it is examined by reference to the evidence.  Clearly when he got out of the vehicle at the outset of the examination he was obviously fit and was, indeed, quite jaunty.  There was then a rapid decline.  In my judgement, that could not be explained by the flu.

42.  In the particulars of objection, it was suggested that there was a connection between his asthma and depression and his need for a doctor.  Again, that does not stack up against the evidence.  In the course of his time at the examination point at Sha Tau Kok, the Accused was taken to a police van and sat inside the van for something of the order of 10 minutes.  Prior to that he had been sitting down for a long time.  In my judgement, he appeared to have no difficulty in walking to the van.  Moreover, after he left the van he stood on the sidelines without apparent difficulty.  Finally, during the course of the video recorded interview which commenced shortly after 2 am on 28 May 2016 the Accused, by reference to both his demeanour and speech and the content of his speech did not appear to be having any real difficulty.  He was certainly not behaving like he was behaving during the time when it is obvious he was somewhat distressed at the Sha Tau Kok customs area.

43.  It is obvious that that episode of illness created a heightened awareness on the part of the police and it is no surprise that they asked from time to time whether he was all right and whether he needed the doctor.  Indeed, even in the video recorded interview one of the officers said that he noticed that the Accused was blinking during the course of the questioning.  Again, the officers were told that he was fine and did not need a break.  Of course, the Accused had an explanation for that as well.  He said that he believed this was towards the end of the interview so that he could hang on for a little bit longer.

44.  If the Accused had continued to have the difficulties which he manifested for some minutes at the customs area at Sha Tau Kok then there might have been a real issue as to the fitness of the Accused which might have presented issues in connection with the voluntariness of the admissions against interest made by the Accused in the sense that it may have been oppressive to continue to ask questions of him which produced admissible material.  It may have been an issue for the exercise of the discretion of the court to exclude otherwise admissible material on the usual criteria.  However, there was nothing in the CCTV or in the video recorded interview or in the testimony of the police officers (which I accept) which caused me concern in relation to the various issues of admissibility that might have otherwise arisen.  That the Accused may not have been in perfect condition is not to the point.  The issues that arose in relation to the health of the Accused were not such at the time that he made the various admissions attributed to him to have rendered those admissions involuntary.  Further, on no account could those admissions, specifically at the times they were made, be excluded on the basis of an exercise of the court’s discretion.

Conclusion

45.  I am satisfied beyond reasonable doubt that the testimony of the officers in rejecting the allegations of threats and inducements.  I am satisfied the same standard that the health issues which manifested themselves at a particular point in time were such that at the time that the admissions attributed to the Accused were made that they caused any basis for doubting the voluntariness of those admissions.  There was nothing in the condition of the Accused which could possibly have justified the exclusion of the admissions attributed to the Accused on the basis of an exercise of the discretion of the court.

46.  For those reasons, I admitted the impugned admissions.