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Hksar v Ko Wai Kit And Another

Judgment Cited authorities 19 Cited in Precedent Map Related
Vincent
Judgment Date01 December 2020
Neutral Citation[2020] HKCFI 3001
Judgement NumberHCCC252/2019
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC252A/2019 HKSAR v. KO WAI KIT AND ANOTHER

HCCC 252/2019

[2020] HKCFI 3001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

________________________

BETWEEN

HKSAR

and
KO WAI KIT 1st Accused
HUI WAI KIT 2nd Accused

________________________

Before: Deputy High Court Judge Bruce, SC

Dates of Hearing: 2, 3, 6, 7 January 2020

Date of Reasons for Ruling: 1 December 2020

________________________

RULINGS

________________________

REASONS FOR RULINGS:

(1) admissibility of statement attributed to 2nd accused

(2) objection by 2nd accused to the admissibility of WhatsApp messages

(3) application for severance of Count 1 and Count 2 of the Indictment


Introduction

1. Objection is taken on behalf of 2nd accused to the admissibility of

(1) the admissibility of a statement attributed to him which the prosecution seeks to produce in support of their case;

(2) certain WhatsApp messages said to be an exchange in that medium of messages between the 1st accused and 2nd accused; and

In addition, 2nd accused applied for severance of Count 1 and Count 2 on the indictment. There was another application in relation to the admissibility of the CCTV material. This was not pursued.

2. Each of these issues was raised and considered as preliminary matters prior to the trial of the accused. At the end of submissions by counsel for the parties, I gave rulings on each of the issues raised as follows:

(1) verbal statement of 2nd accused given to CO 1408 inside Room 1114 is admissible;

(2) post-record of the verbal statement in (1) is inadmissible;

(3) investigations and related matters following the post-record are admissible;

(4) the WhatsApp messages depicted in the hearing bundle presented for the admissibility hearing on that topic are admissible; and

(5) I declined to sever Count 2 from the indictment.

At the time I gave these rulings, I indicated that I would supply my reasons for those rulings in due course. These are those reasons.

The Indictment

3. The indictment dated 29 July 2019 as presently drafted contains 2 counts. The Count 1 which is against both accused alleges that at premises at Cheung Wang Estate in Tsing Yi, New Territories, they trafficked in a dangerous drug namely 796.2 g of a crystalline solid containing 776.3 g of methamphetamine hydrochloride. The Count 2 on the indictment is a charge against 2nd accused only. It alleges possession of a dangerous drug at the Customs Office, Hong Kong International Airport. The quantity of drug is very small. The drug in question is also methamphetamine hydrochloride.

4. Both accused were arraigned on this indictment and the both accused pleaded not guilty to Count 1. 2nd accused pleaded not guilty to Count 2.

Admissibility of statement attributed to 2nd accused

Factual background

5. 2nd accused objected to the reception into evidence of a verbal statement by him on 7 August 2018 to CO 1408, Mr Tang Sze Hon in Room 1114, Wang Sin House, Cheung Wang Estate, Tsing Yi in the New Territories. He also objected to the reception into evidence of the post-record of that statement and to evidence of the investigations into him later on 8 August 2018 at Customs & Excise Service premises at the Hong Kong Airport.

6. On examination of the parcel found to contain concealed methamphetamine hydrochloride in substantial quantities. The parcel arrived via DHL and Customs & Excise Service decided to undertake a controlled delivery package to the addressee. There were a number of unsuccessful attempts at this and persons unknown contacted DHL change the addressee. By the time of the 5th controlled delivery, the addressee had been changed to the name and address of 1st accused. There was evidence, which I held to be admissible of substantial WhatsApp communication between mobile phones in the possession of 1st and 2nd accused respectively and the inference which is available from that communication and the circumstances surrounding it is that is that 1st accused was to receive the parcel and 2nd accused was to collect it. In any event, on 7 August 2018, a customs officer disguised as a staff member of DHL attended at the address of 1st accused and delivered the parcel. Shortly after this, 1st accused was intercepted and arrested by Customs & Excise Service officers. She indicated to them that another person having the same name as that of 2nd accused would collect the parcel from her. The question of 1st accused was asked by inspector Chow who was the officer in charge of the case.

7. In the event, 2nd accused did attend at the premises of 1st accused shortly after her interception and arrest. He arrived at 8:15 PM. 1st accused was asked when 2nd accused entered the premises whether he was the person that she was referring to as the person who was to collect the parcel. She indicated that he was. 2nd accused was himself intercepted and arrested. He testified that his question of 1st accused and the answer were capable of being heard by 2nd accused.

8. When CO1408 arrested 2nd accused, he told him that he was suspected of contravening the Dangerous Drugs Ordinance. 2nd accused was then told he was arrested and he was caution. He was asked whether he understood and his answer was “Understood”. The officer testified that he then asked 2nd accused “What is your name?” 2nd accused answered him “Hui Wai Kit”. The officer then asked 2nd accused what he was doing at the premises and the answer was “[To] find (my) elder sister to chat.” 2nd accused was asked for the name of his sister and he answered “Ko Wai Kit” which is, of course, the name of 1st accused.

9. Further questions were asked about the finding of a bottle in the backpack of 2nd accused which are not presently relevant.

10. At 9:05 PM, CO1408 took a post-record of the answers to questions related above. It was common ground that the post-record (P 61) was an accurate record of what 2nd accused said to CO1408. It included a record of not only the interception but also a record of the other topic which 2nd accused was asked about. In relation to both the matter the subject of objection and the other matter the accused was cautioned in identical terms and the caution was written down in the post-record in those terms. In other words, at the time that the accused came to sign his name to the post-record he had heard caution twice on a verbal basis and he had read it and had it read to him by CO1408. The post-record concluded with the accused being asked whether or not he wished to make any alteration, correction or supplement post-record indicated that 2nd accused indicated to the officer that there was no need to do so. The officer then produced a version of the usual declaration. He then said 2nd accused (and this is recorded in the document) “If you understand and agree with (it), please write (it) down and sign for confirmation.” 2nd accused signed.

11. 2nd accused was then taken back to the office of the Airport Investigation Group of the Customs & Excise Service. At this stage, 2nd accused was more thoroughly searched and a small quantity of ice was found on his person. He was arrested and cautioned in relation to that which was seized and he remained silent. That was the subject matter of Count 2 on the indictment.

The objections

12. Counsel for the 2nd accused objected to the reception to evidence of the verbal utterances of the accused because said that oral response of the accused was a breach of the “spirit” of the Judges Rules 1912. Further, it was contended that the caution which was administered on 2nd accused did not specify which specific offence that 2nd accused was suspected of committing. It was argued that this was a breach of the Judges Rules of 1912 and the Secretary for Security’s Rules and Directions of 1991. Allied to this, it was contended it was unfair that the accused was not informed of the basis of the suspicions of the Customs & Excise Service officers as to 2nd accused’s complicity in the delivery of the parcel. It was also contended that the oral response of 2nd accused did not amount to a confession relevant to the charges that he faces and is therefore inadmissible. The basis of this is that because it was not an admission, it was not an exception to the hearsay rule. It was further contended that the prejudicial effect of the oral response of 2nd accused outweighed probative value in that it might suggest to the jury that 2nd accused is accepting all of the allegations made by 1st accused against him. The basis for this contention is that it was said that in law what 1st accused told the customs officers was inadmissible against 2nd accused.

13. Finally, there was a further allegation that 2nd accused was actually escorted into the premises by customs officers then stationary outside the premises the purpose of guarding those premises and as a result of that accused was under threat when he responded to the caution of CO1408.

14. Although not in his written particulars, counsel for 2nd accused also contended that the results of the search at the officers of the Customs & Excise Service at the Airport was inadmissible because that search had been vitiated by the conduct of the officers at Room 1114.

Evaluation

15. CO1408 testified as did another customs officer and also Inspector Chow, the accused chose not to testify as was his right. The consequence of his not testifying was that there was no evidence to contradict the officers called by the prosecution. In my judgement, each of the officers was transparently honest and I had no hesitation accepting all that they said.

16. I also make the point at this stage that I accept what the Inspector said that when 2nd accused entered Room 1114 they had no idea whether he was the person who 1st...

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