Case Detail

HCCC 174/2020

[2021] HKCFI 1646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2020

______________

BETWEEN
	HKSAR
and
	LAU TING YIN	Defendant

______________

Before:

Hon Campbell‑Moffat J in Court

Dates of Hearing:	11-31 May, 1-7 June 2021
Date of Decision:	7 June 2021

______________________________________

REASONS FOR DECISION
NO CASE TO ANSWER

______________________________________

1. This is an application by Ms Alva, on behalf of the defendant Lau Ting Yin of no case to answer. She submits that the Court should withdraw the case from the jury because the acts relied upon by the prosecution are not sufficiently identified, and where identified are not sufficiently proximate. The evidence does not support an intention to traffic in dangerous drugs (“TDD”) nor is there any evidence to upon which a jury could convict the defendant of an attempt to traffic in a dangerous drug. In so saying, the court should conclude that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it and the matter should be withdrawn from the jury.

2. The defendant is charged with a single count of attempting to traffic in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”) and s159G of the Crimes Ordinance, Cap 200. It is the prosecution’s case that the jury can be asked to look at the evidence in the round. That begins when Ah Hung asks the defendant to find someone to collect a parcel. The defendant knows that activity is illegal and suspects that it involves dangerous drugs. He says as much to Ah Sing when he seeks to recruit him on behalf of Ah Hung. This is approximately one month before the material events. Whilst there is no intervening evidence of any involvement by the defendant in the delivery of the parcel to Ah Sing on 9 February 2019, the prosecution say that the jury can infer that when he travelled to Ah Sing’s flat that evening, knowing at that stage that Ah Sing was repacking dangerous drugs, he went with an intention to play some role. The act of travelling to the flat, knocking upon the door and asking for Ah Sing is sufficient evidence from which the jury can infer that he had carried out an act which was more than merely preparatory to TDD. Mr Laskey relies upon the case of HKSAR v Nanik CACC 114/2016; [2018] HKCA 500 for this proposition. This was a prosecution for aiding and abetting TDD. The appellant had been apprehended with her co-defendant ‘Sugiyanti’, when they were both in the Jordan MTR. It was Sugiyanti who was in possession of the drugs. On arrest and under caution, the appellant had said “It was Phillip who said she would be given $1,000 for taking something with a girl”. When asked what, the appellant had said “The female said, it was cooked cocaine”[1]. Those admissions were reduced into writing and signed by the appellant. In her video recorded interview (“VRI”), she had gone into some detail about Phillip and the events including the role she was to play. In her defence in trial she said she had made no such admissions. She was with Sugiyanti for a wholly innocent purpose. She knew nothing about the drugs. The issue was clearly one for the jury to decide. There was more than sufficient evidence before the jury, if they believed her admissions, from which they could find her guilty of aiding and abetting TDD. This authority was unhelpful. The charge before the court is one of attempt. The law of attempt and aiding and abetting are different but in any event there were clear admissions in the case of Nanik, which were wholly within the purview of a jury.

The Law of Attempt

3. Section 159G of the Crimes Ordinance, Cap 200 states:

“Attempting to commit an offence
(1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.”

4. The completed crime with which the defendant is charged as attempting, is one of trafficking in a dangerous drug contrary to s4(1)(a) and (3) of the DDO. The constituent elements of the offence of trafficking in dangerous drugs are knowingly possessing dangerous drugs and unlawful dealing amounting to an act of trafficking. The actus reus is therefore the act of possession of the dangerous drugs along with an act amounting to trafficking. The mens rea is knowledge of such possession and an intention to traffic. It is a conduct crime. The prosecution must therefore prove that the defendant knew that he was to deal in DD, intended to do so and that he did an act that was more than merely preparatory towards that end.

5. There is no issue on the facts that the defendant never possessed the drugs himself. There is no evidence that he had possession of them by reason of having control over them. There is no evidence that he supplied them to Ah Sing or that he arranged for them to be supplied to Ah Sing. There may be an inference to be drawn from his admission on arrest and his VRI, if accepted, that this was done by Ah Hung. There is no evidence that he provided the means of packaging the drugs or that he directed Ah Sing as to packaging and there is no evidence as to what was to be done with the drugs after packaging other than the defendant’s reference in his VRI that he believed Ah Sing was to receive the package but that someone else was to collect the package from him shortly thereafter. Mr Laskey simply points to the act of travelling to the flat, ringing the doorbell and asking for Ah Sing from which, along with the fact that by this stage he accepts he knew of the nature of the DD, he submits the jury can draw an irresistible inference that the defendant went there in order to play some part, albeit the prosecution are not in a position to say what part. He submits, the defendant has embarked upon the crime proper by this stage.

6. What is required for the offence of attempt to commit a crime is a physical act in pursuance of the offence which is sufficiently proximate to the complete offence.[2] There were previously two lines of approach to this issue. The first in time being that to be found in Eagleton (1855) Dears CC 515 per Parke B: “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are…… It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt”. The second comes from Stephen’s A Digest of the Criminal Law, 5^th Ed (1894), Article 50:“An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted”. Lord Diplock in DPP v Stonehouse [1978] AC 55, stated his understanding of the former approach to be: “In other words the offender must have crossed the Rubicon and burnt his boats”, whilst Lord Edmund‑Davies sought to rely upon the Stephen’s Digest approach i.e. when an act or series of acts “which is immediately and not merely remotely connected with it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime”[3]. The common law was thereafter superceded by the introduction of the Criminal Attempts Act 1981 which is in similar terms to s159G of the Crimes Ordinance, Cap 200. Since then, and definitively, the Lord Chief Justice stated that the question before the jury where an attempt is charged is: Was the defendant still in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle the jury to say that he had embarked upon the offence itself? In so doing the legislature sought to steer a midway course between the two approaches identifying the point in time when the ‘series of acts’ begins and that is when the merely preparatory acts come to an end and the defendant embarks upon the crime proper[4]. That is also the law in Hong Kong.

7. On a trial for an attempt to commit a substantive offence it is a question for the judge to decide whether there is any evidence to establish the acts done by the accused which were sufficiently proximate to the complete offence to constitute an attempt to commit it and it is for the jury to say whether they accept that evidence as amounting to an attempt: R v Cook (1963) 48 Cr App R. 98. In the crime of attempt, the concept of the proximity between the acts of the accused and the complete offence involves some imprecision, they can be so removed from the complete offence that no reasonable person could consider them sufficiently proximate to conform to the definition of an attempt but at the other end they can be so immediately connected with it that no reasonable person could regard them as not so conforming.

8. Is there evidence before the court that the defendant intended to traffic in the dangerous drugs which were found in the possession of Ah Sing on 9 February 2019 on a joint enterprise basis as Mr Laskey suggests i.e. that he intended to unlawfully possess DD in order to traffic in them? Is there evidence to show that the defendant did an act which was more than merely preparatory towards carrying out that intention? In other words, did he embark upon acts, the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime carried out. For the purpose of analysis, the events can be divided into two. The events from approximately one month prior to 9 February 2019 when the defendant speaks with Ah Hung and introduces Ah Sing and then the events of 9 February 2019. The intervening evidence is of no assistance. Mr Laskey prays in aid the earlier events but accepts for the purposes of attempt he must identify the acts the prosecution rely upon to show that the crime proper had been embarked upon.

9. It may be that the prosecution could have brought this case against the defendant for attempt as a result of a line of authority in respect of controlled deliveries, which suggests that a person who attends at the scene of a crime may have reached the stage at which his actions can be said to be more than merely preparatory. In HKSAR v Perez Osorio Luis Fernando CACC 284/2016, McWalters JA said[5]:

“It was the prosecution case that the applicant came to the room intending to take possession of the suitcase in the knowledge that it contained dangerous drugs but was arrested before he could do so. …… To suggest that the facts did not establish that the applicant’s conduct was not more than ‘merely preparatory’, is nonsensical. The applicant attended the hotel room, took steps to enter it and reached out to take hold of the suitcase containing the drugs.”

And in HKSAR v Chung Sai Wah CACC 367/2017, the same Justice of Appeal stated[6]:

“By its verdict, the jury must have been satisfied that the applicant knew there were drugs in the hotel room and he intended to go to the hotel room to deal with them in some way. He knew he had to contact a person in the room and he did so, twice. He travelled to the hotel, contacted PW1, enquired from PW1 the room number, went up to the room, knocked on the door and entered the room. He did all of this with the intention to deal in some way with the drugs in the room. He was only one step away from committing the substantive offence. As a matter of law and as matter of fact there is no basis for concluding that the applicant had not gone beyond acts of mere preparation.”

10. A closer look at the facts of those cases, compared with the facts of this case, will show that they are not on all fours with the issue and evidence before the Court. In Perez, the accused had been acquitted of the substantive charge of TDD and convicted of the alternative charge of attempt. The facts are simple. A person called Tobar had imported DD into Hong Kong. He was arrested at the Hong Kong International Airport and had agreed to be part of a controlled delivery operation. He was taken to his pre-arranged hotel room but nothing occurred on the first night or following morning. By the afternoon, Customs & Excise had found a Hong Kong telephone number on his phone in the name of Laura and instructed him to call it. There were a number of phone calls, all of which were in Spanish and with a woman. At 6.26 pm on the next day, the accused, a male, arrived. Tobar answered the door, spoke to the accused and attempted to pass the suitcase to him. The accused touched the handle of the suitcase as if going to collect it and started to enter the room, at which point he was arrested. He carried with him a mobile phone containing the same contact number as the one which Tobar had earlier rung for Laura although it was for someone called Nata. There were several calls between the accused and the woman prior to the collection. Digital evidence suggested that the woman’s phone and the accused’s phone had called the hotel during the relevant period as well but there was no evidence of the accused contacting the telephone of Tobar and therefore everything had been arranged through the woman. The defence case was that the accused had attended the room on what he believed to be an innocent errand on behalf of his girlfriend. From the facts it is clear that the accused and the defendant had no other connection. He went so far as to physically seek to place his hands upon the suitcase containing the DD. In Chung Sai Wah, the accused was found guilty after trial of TDD. The Court of Appeal quashed the conviction and substituted one of attempt. In that case, the controlled delivery took place in a hotel room but in this instance the accused was said to have attended in order to teach the arrested person how to mix drugs. That person was unknown to the AP (PW1). The digital evidence, which was not disputed, showed that the accused had twice phoned PW1 shortly before he came to the room. The accused had rung the doorbell and entered the room. When apprehended he had said he came to the room ‘to deal with coke’, which was the DD in the possession of PW1. The defence case was that he had made no such admission and that he had said he was there to obtain telephones. In any event, the word coke was an everyday word and was ambiguous and equivocal. In its reasoning, the Court of Appeal relied heavily upon the admission as to the reason for his presence and the fact that the jury, by its verdict, must have been satisfied that the accused knew there were DD in the hotel room and that he intended to go there to deal in them. That being the case he again had taken all necessary steps towards completion of the offence.

11. The matter before the Court is still wholly different. The person who is said to have carried out the substantive offence, Choi Yue Sing, had known the defendant since he was twelve years of age. They were both only 17 at the time of the offending. They were friends. There was therefore no overwhelming adverse inference to be drawn from any contact between them, without more. The defendant admitted from the outset that he had introduced Ah Sing to Ah Hung, the person he suggested was the person who arranged to have the parcel delivered to Ah Sing. According to his VRI, he had no more to do with the arrangements. This had been left between Ah Sing and Ah Hung. He was simply to be paid $300 for the introduction. At that stage in time, he had not been told what was to be in any parcel that Ah Hung required Ah Sing to receive and although he had suspected it would be something illegal, which is why he did not volunteer himself, he had not been told what it was. He did suspect that it might be DD and had spoken to Ah Sing about this but he did not know for certain it was DD until he saw the photos on 9 February 2019 at 18:07. Up to that point in time the only evidence that the prosecution has is the defendant’s admission before and after arrest and in interview, which are consistent as between each other. There is no evidence before the Court of any other role than the one of introducer at a time he had no actual knowledge of DD but a suspicion. It is trite law that suspicion is not enough. The act of introducing someone a month before for an unspecified event in the future, is clearly not more than merely preparatory. What then did he do on 9 February 2019 which was a step towards the completion of the offence. Remember we are talking about two 17 year olds. Ah Sing informs him he has received the parcel and shown him the contents but there are no other calls or WhatsApp messages that day to indicate that it was the defendant who was directing or controlling or even notifying Ah Sing of a delivery that day. It is Ah Sing that asks him to go up to see the DD; it was Ah Sing that introduced the subject of packaging the DD. At its highest, the prosecution has the reaction of the defendant to the fact that the drugs are ketamine, which appears to be very angry, but that is somewhat ambiguous and highly speculative. On the evidence, it could just as easily be a reaction to the fact that his friend has been told to repackage the DD when all the defendant thought he was doing was to take receipt of the parcel and then pass it on. There is no other evidence and so what inference can the prosecution possibly ask the jury to draw? At best that his strong reaction suggests that he had some sort of unascertained involvement?

Conclusion

12. There is insufficient direct evidence before the Court from which the prosecution can ask the jury to convict the defendant of attempt. There is also insufficient indirect evidence from which the prosecution can ask the jury to draw an irresistible inference that the defendant played any role other than introducer and friend. That being the case the prosecution cannot point to an act or acts which are more than merely preparatory such that the jury can be sure that the defendant has ‘embarked upon the crime proper’. His knowledge of what Ah Sing is doing and his presence at the flat is insufficient to do that. This matter must be withdrawn from the jury. I find that no reasonable jury properly directed upon the law of attempt and the applicable evidence before the Court could safely convict the defendant of this offence.

13. What is perhaps even more concerning to the Court, but which the Court has not taken into consideration when coming to the above decision, is the fact that the prosecution have in their possession and in the unused material, the video recorded interview of Ah Sing which is, of course, inadmissible as against the defendant. However, it overwhelmingly suggests that Ah Sing was actually working for someone called Siu Lung (not Ah Hung) and had previously accepted delivery of two sets of drugs which he had then passed on to Siu Lung in their original condition. It was Siu Lung who had asked him to repack the dangerous drugs on 9 February 2019, and it was Siu Lung who had provided him with the means of doing so. Indeed, the prosecution seek to rely upon the above in their summary of facts which formed the basis of the plea of guilty of Choi Yue Sing. The defendant is not mentioned other than as the introducer. That basis of plea is clearly in conflict with their current case.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr Edward Laskey, counsel‑on‑fiat, on behalf of the Department of Justice, for HKSAR

Ms Patricia E Alva, instructed by Tony Kan & Co, assigned by Director of Legal Aid, for the defendant

[1]HKSAR v Nanik CACC 114/2016 paragraph 7.

[2]DPP v Stonehouse [1978] AC 55, per Lord Diplock p68A

[3]Stonehouse supra at p 84; see also Davey v Lee (1967) 51 Cr App R 303 per Lord Parker CJ

[4]R v Gullefer (1990) 91 Cr App R 356 per LCJ at p359

[5] §58

[6] §54

HCCC 174/2020

[2021] HKCFI 1582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2020

______________

BETWEEN
	HKSAR
and
	LAU TING YIN	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Dates of Hearing: 24-28 & 31 May 2021

Date of Decision: 1 June 2021

__________________________________________

R E A S O N S F O R D E C I S I O N

__________________________________________

The Application

1. This is an application originally made by Mr Chong on behalf of the defendant on 3 May 2021, but adopted and enhanced by Ms Alva, who now represents him. The defendant objects to the digital evidence sought to be adduced by the prosecution. These purport to be a WhatsApp Call Log and a selection of WhatsApp messages taken from the iPhone of the defendant [P71]. The WhatsApp messages are alleged to be between the defendant and Choi Yue‑sing (“Ah Sing”), who was D1 in these proceedings; between the defendant and someone referred to as Ah Hung and between the defendant and someone referred to as @ping ping.

2. At present the Call Log and WhatsApp messages have not been attributed any individual exhibit numbers. The digital evidence, in the form of the WhatsApp messages only, was originally identified as MFI/1-3 at the beginning of the trial. This was served in a different and much fuller form within the first AE Bdl at pp AE26-163, without reference to whom it was that was adducing it. It included for the first and only time, a Call Log at AE26-43 (“the Call Log”). The certified translation of the Whatsapp messages was served within AE Bdl 2 at AE 164-302. It was finally served, but in a different format, within AE Bdl 3 at AE312-347 which was sought to be adduced through DPC 16239. For the purposes of this application, it is presumed that the prosecution seeks to rely upon the contents of AE Bundle 3, which was the last in time to be served. According to DPC 16239, he was tasked with handling the digital evidence which he obtained from exhibits P79(a) & 80(a), which are two CD ROMs, and which were adduced before the Court in the voire dire, by SPC 54124.

3. The main thrust of Ms Alva’s submission goes to the methodology adopted by the Narcotics Bureau and CSTCB[1] in extracting the digital data but she also has much to say about the handling of the exhibit P71 and the handling of the data after extraction. In the alternative however, the defence submit that if the Court were to find the WhatsApp Call Log and the WhatsApp messages both relevant and admissible, then the WhatsApp messages should nevertheless be edited to excise the messages which fall outside of 9 February 2019 as they are too remote; speculative in nature; may be indicative of uncharged acts; their prejudicial effect outweighs their probative value and finally, in the Court’s discretion to ensure a fair trial.

Digital Evidence

4. S22, 22A and 22B of the Evidence Ordinance, Cap 8, were last amended in 1984 and followed the law of England and Wales as it was at that time. They purport to lay down the conditions of admissibility of documentary and computer produced evidence where such evidence is sought to be adduced as prima facie evidence of any fact stated therein[2]. S22 deals with documentary evidence and s22A with documentary evidence produced from a computer[3]. They are statutory exceptions to the rule against hearsay, where that rule is applicable. Where the evidence is sought to be adduced for a non-hearsay purpose, s22A is not engaged[4].

5. The rules of evidence are complex, none more so than the rule against hearsay, which has yet to be amended in Hong Kong in line with other common law jurisdictions. Often, in criminal trials, more than one rule of evidence may apply to the same piece of evidence. Which rule to apply and in what order they should be considered can be confusing, especially when applying old rules formulated in the last century, to new and developing circumstances. S22A falls into this category. Computer produced evidence is not what it was when the original legislation was drafted. At that stage the concerns were whether a computer could be said to be operating properly where there was human input at some stage in its operation. Today, and where s22A is applicable, it is not just a question of assessing the possibility of misuse by a user but also the potential corruption of data by third parties completely unconnected to proceedings, by the technology itself, or by those seeking to examine it. This issue is relevant in circumstances where it is relied upon as hearsay or non-hearsay evidence.

6. In a criminal trial it is especially important that only relevant admissible evidence is before the Court. The provenance and integrity of that evidence also has to be assessed in order to establish whether it should be admitted and if so, what weight should be attributed to it. Where defendants are at risk of losing their liberty, that responsibility should weigh heavily with the court.

The Evidence Sought to be Relied Upon

7. In this case, the prosecution seeks to adduce digital evidence taken from the memory contained within the mobile phone belonging to the defendant [P71]. It is not seeking to adduce any evidence from the sim card operator or data held outside of the physical phone itself which is accessible through the medium of the phone. The digital evidence which this Court is concerned with falls into four categories:

(i)  A WhatsApp Call Log at AE 26-43, which includes calls between the number 52447542 and 97928545 from 5 February to 9 February 2019.
(ii)  WhatsApp messages between 52447542 and 97928545 from 7 January to 9 February 2019 at AE44-67[5].
(iii)  WhatsApp messages between 52447542 and 54062149 on 9 February 2019 at AE68-90[6].
(iv)  WhatsApp messages between 52447542 and 67499386 from 4 January to 9 February 2019 at AE 91-163[7].

8. For what purpose does the prosecution seek to rely upon items (i) to (iv) above? Mr Laskey puts his case in the alternative. Firstly, he relies upon them as evidence of their truth. He says it shows the involvement of the defendant with both Ah Hung, Ah Sing and an unidentified third party. He says the part he played in the substantive offence can be inferred from this, which he says is ‘more than merely preparatory’. For these purposes the prosecution accept s22A is triggered. In the alternative however, either if the Court were to find that s22A did not apply or that the prosecution had failed to comply with the requirements thereunder, Mr Laskey submits the prosecution can rely upon them as real or non-hearsay evidence. In this regard he submits they show ownership of the phone itself and the defendant’s sole use of the iPhone, for which he also relies upon the admissions within the VRI at Counters 91-92 and 99-102. He has not suggested any other non-hearsay purpose for which he wishes to place the digital evidence before the Court.

9. The defence objects. Ms Alva, on behalf of the defendant, submits that s22A, is clearly triggered on the true purpose as outlined by the prosecution and they have failed to comply with it. If the Court were to find that to be the case, then none of the digital evidence can be admitted. If the court were not with the defence on that point, Ms Alva submits that it should nevertheless be excluded on the bases outlined above or, at the very least, be appropriately edited.

Procedure for the Admission of Digital Evidence – Hearsay and Non-Hearsay Evidence

10. I agree with Ms Alva on the true purpose for which the prosecution seeks to rely upon this evidence. Mr Laskey accepts that and his alternative submission was not forcefully argued. Where the prosecution or defence seek to rely upon data obtained from an electronic device for a hearsay purpose, whether that be a computer, telephone or some other applicable device[8], such evidence must be adduced properly, either through a human being who is a percipient witness as to its creation, use or receipt; or by way of a statutory exception. S22A is engaged if the evidence is sought to be adduced as prima facie evidence of a fact stated therein i.e. for the truth of its contents. This is the primary purpose of the evidence in this case. In such circumstances the requirements of s22A are to be complied with. It is not open to the parties to agree such evidence by way of admitted facts in order to circumvent the requirements of that section as has become the practice in these Courts[9]. However, for the avoidance of doubt, s22A and s22B also provide guidance for how the Court should consider the integrity of such evidence even if produced for a non‑hearsay purpose. This is the prosecution’s argument in the alternative, albeit not a strong one. In the same way that a Court would not unilaterally accept a written document for a non‑hearsay purpose unless it was satisfied it was genuine, e.g. written by a certain person, or received by another and recognised as genuine, so the Court should consider the integrity of data. It is relevant to ask how it came into being, who is said to have created it and whether its digital profile can be relied upon. If so, to what extent it can be relied upon and what weight should be attached to it.

Where s22A is engaged

11. Where s22A is engaged because the party adducing it seek to rely upon it for a hearsay purpose, the first question which the Court should ask itself is whether direct oral evidence of any such fact sought to be adduced would be admissible in trial[10].

12. Only after s22A(1)(a) has been satisfied need the Court go on to consider the conditions to be met under s22A(1)(b) as defined in s22A(2). Those are:

“(a) that the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or individual;
(b) that the information contained in the statement reproduces or is derived from the information supplied to the computer in the course of those activities; and
(c) that while the computer was so used in the course of those activities –
(i) appropriate measures were in force for preventing unauthorised interference with the computer; and
(ii) the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.”

13. In respect of telephone evidence, this is usually initially satisfied by the production of a s22A Certificate[11] from the mobile phone operator in reference to its server. Such a certificate cannot usually seek to go beyond merely stating that a service was supplied to a mobile number and that such a number recorded outgoing and incoming calls, texts, voice messages on a certain date, at a certain time and for a specified duration. It cannot be evidence of who made or received such calls without more. That may have to be subject to the drawing of an irresistible inference e.g. from a VRI. As for social media which is operated, and sometimes encrypted, by other service providers e.g. Facebook, WhatsApp, Telegram, Instagram etc the mobile phone certificate cannot certify the veracity of the contents. In this case the certificate sought to be produced in respect of P72, the defendant’s sim card, at pp AE1-3 can only go so far as to state the commencement of service to an unregistered sim card. Paragraph 7 of that certificate, which seeks to certify the proper operation of the computer, is of no value whatsoever in evidence as the data sought to be relied upon by the prosecution has been retrieved from P71, the defendant’s iPhone and not P72, his sim card. For these purposes DPC 54124 was recalled. He gave evidence that the digital evidence now sought to be relied upon was retrieved from the memory of the physical phone itself. It was contained within its memory and there was no need to seek to use the phone to access that data from anywhere else. By way of an aside, he reminded the court that the laboratory itself was secure and that he would not be able to do so in any event as there was no wifi and nor therefore would any outside body have the ability to access it. So far as the operating system of the iPhone was concerned, he did not hold himself out as an expert as to that system and could not assist the court. As Ms Alva has pointed out, there is no certificate before the Court in respect of the operating system of the iPhone which would satisfy s22A(2). DPC 54124 however gave evidence that the server, which eventually contained the image of data retrieved from the iPhone, and which would satisfy s22A(3), was believed to be working properly as was the forensic tool employed to extract that image and that in his experience there was nothing to suggest the imaging process in respect of this iPhone was not carried out satisfactorily.

14. What the prosecution seek to do is to place the data, retrieved from P71 by way of forensic imaging, before the court. It is that data, contained within the image retrieved, which the prosecution say can be adduced under s22A. For the purposes of placing the content of such evidence before the Court i.e. the data retrieved from the iPhone and not data held by the service provider, s22A (3) comes into play. That reads:

“(3) Notwithstanding subsection (1), a statement contained in a document produced by a computer used over any period to store, process or retrieve information for the purposes of any activities (“the relevant activities”) carried on over that period shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if –
(a) direct oral evidence of that fact would be admissible in those proceedings;
(b) It is shown that no person (other than a person charged with an offence to which such statement relates) who occupied a responsible position during that period in relation to the operation of the computer or the management of the relevant activities —
(i) can be found; or
(ii) if such a person is found, is willing and able to give evidence relating to the operation of the computer during that period;
(c) the document so produced under the direction of a person having practical knowledge of and experience in the use of computers as a means of storing, processing and retrieving information; and
(d) at the time that the document was so produced the computer was operating properly or, if not, any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents,
but a statement contained in any such document which is tendered in evidence in criminal proceedings by or on behalf of any person charged with an offence to which such statement relates shall not be admissible under this subsection if that person occupied a responsible position during that period in relation to the operation of the computer or management of the relevant activities.”

This is usually placed before the Court by an expert from one of the specialised Cyber Security divisions of a government department or a privately instructed expert witness. In all cases, the proper practice is to obtain an image of the digital evidence and attribute to it a hash number. This should be done by the prosecuting authority as soon as possible after seizure to avoid the possibility of corruption of data. The responsibility for the security and integrity of data (as with the security and integrity of exhibits) lies with the prosecution[12]. Once an image has been taken by means of the appropriate forensic software and a hash value calculated, it should be recorded formally. In this case that was done by means of a POL 155 completed by DPC 54124. The hash value is of considerable importance. The image taken, which remains upon the police server, should be encrypted to secure it but in any event, whenever it is accessed thereafter the hash value should be calculated and confirmed. A proper record should be maintained of that exercise. There must be no change to that value. If there is a change, it should be recorded. A copy of the data should be made at the very first opportunity and not months or years later. At present that would be by downloading to a read only CD ROM or possibly an encrypted thumb drive, one of which should be retained as a master copy. Further copies can be made by the same exercise at the same time for use by the prosecution and defence. A soft copy should always be served upon the defence as the exercise of interrogating such data is a time consuming one and often delays court proceedings when it is not served but instead simply identified within the unused materials. The expense and manpower taken to copy the data onto a CD ROM, in most cases, is negligible and service of that data places a duty upon the defence to consider it in a timely manner. If there is any possibility that the data retrieved is to be used in evidence against the person charged, then this should be carried out as a matter of practice. A considerable number of court hours and police manpower would be saved if this exercise were carried out as a matter of practice. This case is an example of that. We are now in day 14 of a 10‑day trial and have not yet empanelled a jury because of the lax practices of the prosecuting authority.

15. For practical purposes, not all data retrieved will be relied upon. Where it is to be only partially retrieved and then transferred into a more user‑friendly form such as a log or schedule, a witness will be required to speak to how that was achieved. This should not be an afterthought as it was here. If the prosecution serves the data in a timely manner, it is likely that such a log, once proved, can be agreed. It is far more difficult to do so if the service of material is left until close to or at the time of trial. In this case there was a witness statement from someone who purported to carry out this exercise[13] but it was ineffective in properly dealing with how the exercise was carried out so as to ensure the integrity of both the data and its provenance. Court time was therefore taken up with calling that witness.

16. Digital evidence from mobile phones falls into several categories. These include, but are not limited to:

(i) a call log of voice calls;
(ii) text messages;
(iii) voice messages;
(iv) social media messaging; and/or
(v) use of and content of other applications.

Whilst items (i) to (iii) can be provided in schedule form by the service provider and forensic expert, items (iv) and (v) cannot. This data should be the subject of a certificate from the application provider if the contents are to be relied upon as evidence of the truth. In the absence of a s22A certificate, the party seeking to adduce such evidence may however seek to rely upon s22A(3). Where the content of more than one messaging platform is relied upon, it would be more intelligible to the court, after it has been formally produced, for a master chronology of messages to be created. It is not acceptable to produce several different messaging streams covering a substantial number of pages and expect the finder of fact to cross reference them and place them in chronological order. This is all the more important in a jury trial. This can be produced as an agreed exhibit or as an aide memoir.

Chronology and Provenance

17. The original source of the data in this case is P71, the red iPhone (“P71”). Some of the evidence in this case therefore pertains only to the Apple iPhone and its operating system and not to Android devices but the principles arising are generally the same. P71 was seized by DPC 4980 at the time of arrest on 9 February 2019 along with its sim card P72 and they remained in his custody until the VRI later that night. P71 was opened during the VRI in order to interrogate telephone numbers. It is not clear whether there was a password on it at that time although it would be unusual for that not to be the case. It is the defence case that it was locked with a password. If the password is cleared at that stage in order to facilitate later access by an investigating officer or forensic technician, then this should be done within the VRI and on tape so that there is no question of improper behaviour. After the VRI, P71 and P72 were sealed within a TEPE B2945184 (“the TEPE”) on 10 February 2019. They were in the custody of DPC 4980 (in a locked desk drawer) until they were handed over to DPC 6123, the exhibits officer (“the EO”) on 12 February 2019. The EO also kept the case exhibits locked in a drawer in his office. On 15 February 2019, P71 & 72 were handed over to SPC 10129. He gave evidence that they were received formally into the property store at that time. He said that all property in and out of the Narcotics Bureau (“NB”) property store was recorded in the CMIS[14] system by individual exhibit reference [P82] and could not be handled without it being recorded. SPC 51753 drew out the exhibits from the NB property store on 9 July 2019 and handed them over to DPC 486, who delivered them on the same day to SPC 54124 at the CSTCB[15]. I will deal with his handling of the exhibits in more detail at paragraph 18 below but will continue to complete the chronology of the handling of the real exhibits first. According to both SPC 54124 and DPC 8460, P71 and P72 were returned by SPC 54124 to DPC 8460 on 20 August 2019. DPC 8460 gave evidence that he returned them to the NB, where he put them into his locked officer drawer. He does not now recollect what he did with them thereafter, which is unfortunate because they were not placed back into the NB property store until a year later on 13 August 2020. There is no evidence of what happened to either P71 or P72 in the intervening period save for DPC 8460 stating he believed they were still in his desk on 23 August 2019 when he made his second visit to CSTCB.

Forensic Analysis

18. SPC 54124 told the court that he opened the TEPE on 9 July 2019, to check for obvious damage to the phone and sim card. There being none, he resealed the exhibits into a new clear plastic bag with a CSTCB tamper proof label s/n CA065831. This system is not the same as the TEPE system and does not allow for any record to be made upon the bag itself of who took over the exhibits and who sealed the new CSTCB bag. Indeed, according to the officer, no record is kept, which I find surprising. On 15 August 2019, P71 and P72, were signed out and unsealed by SPC 54124 and P71 was charged for just four minutes. It is his evidence that the phone had no password at this time although it appears to have had a password at the time of the VRI as the defendant was asked to use it. If that was the case and if it is accepted that the TEPE had not been interfered with at any stage, the irresistible inference is that the password was deleted before the sealing of the TEPE at 02:01 hours on 10 February 2019 when it was in the possession of DPC 4980. DPC 54124 gave evidence that once the phone had been accessed via a password, the user could delete the need for the password thereafter but there is no direct evidence before the court that this was done.

19. In his witness statement dated 5 September 2019 MFI/9, at paragraph 14, DPC 54124 stated that the date and time displayed when the iPhone was opened was 13 April and 1:42. Such a time and date would indicate that the phone had been accessed by someone between the date of sealing the TEPE and the date it was opened by SPC 54124, although SPC 54124 stated that the TEPE was intact when he received it. This anomaly was pointed out during early submissions and a further witness statement was made on 20 May 2021 by 54124, in order to correct three errors in his earlier statement. According to the evidence before the Court and Exh P82 which is a CMIS record[16], the exhibits should have been in the NB property store at this time. In his oral evidence, 54124 stated that the errors had occurred because he had used not one but two previous witness statements from which he cut and pasted his statement of 5 September 2019. These two witness statements MFI/9a&b, were part of a collection of witness statements stored on an encrypted thumb drive, which he kept personally. He maintains that he made errors when he carried out this exercise and did not alter certain passages correctly to reflect the facts of the case at hand. He produced MFI/9a&b to show where and how this had occurred. As Ms Alva pointed out in cross‑examination, and as can be seen by a comparison with those earlier statements, the text in Chinese used for the date and time at paragraph 14 of his 5 September 2019 witness statement (MFI/9) is not the same as that of the witness statement upon which he said he relied i.e. paragraph 12 of the statement of 12 June 2018 (MFI/9(a)). He did not answer this. In any event, on 15 August 2019, 54124 said he obtained an image of the data upon P71 using the Cellebrite forensic tool and thereafter calculated a hash value for the image which was retained upon the police server. It is still there.

20. The real exhibits were never viewed again. They were resealed with a new CSTCB label s/n CAO65857 and returned to DPC 8460 on 20 August 2019, when he attended to view the data image which was stored upon the CSTCB server. He did so with the assistance of DPC 54124, who confirmed that he checked the hash value of that data each time he accessed the server. The exercise on 20 August 2019 was to interrogate the available data image. As there was a large amount, DPC 8460 did not ask for a copy of any part of it at that stage. He returned on 23 August 2019, when part of the data from P71 was downloaded onto 2 CD ROMs in excel format (P 79 & 79a) by DPC 54124 and which were handed over to DPC 8460. On 4 September 2019 further data in excel format was downloaded onto two CD ROMs (P80&80a) and handed over to DPC 8460. The fate of the Master Discs P79 & 80, and their respective working discs P79a & 80a is also unknown until the date they were required to be produced in court. The data contained within Exh P79a and P80a (“the working discs”) was extracted by DPC 16239 at some time in January 2021. He received the working discs at some point in December 2020 from DPC 8460. Neither 8460 or 16239 told the Court when that was. They did not remember and had no record. In the intervening period, between December 2020 and January 2021, according to DPC 16239, they were held in a lockable drawer in the NB but as this was a communal drawer, the court presumes a number of people had access. DPC 16239 told the court that he looked at the material on the working discs in January. He could not say when in January. He did not say what format it was in. According to DPC 54124 it was downloaded in excel format but it is no longer in that format before the Court. It is clear from the format now before the Court that the format of the data has changed over the intervening months as can be seen from a perusal of AE Bdls 1-3. He said he had selected part of the data to be transcribed. He did not say which part. Having received those messages back, he then arranged to have part of them translated. He identifies these. At some stage he made his own table of the evidence he had selected. He could not identify exactly what that was because he said he had not attached any such schedule to his statement. At this point the prosecution were in considerable difficulty. They wish to rely upon the schedules at AE312-347, which were attached to his witness statement. But the witness had not attached them to his witness statement. He could not identify them as such because he could not refer to his statement to memory refresh. It had not been made contemporaneously with events. Nor had he made it from documents which had been made contemporaneously with events by him. He had no record of what he had done with the data because he had destroyed it. He had no independent memory of this whole exercise, that was self-evident from the poor quality of his evidence. If he had been provided with material to refresh his memory from NB documents or even his own witness statement with the attachments someone else had appended to it, he may have been able to answer for the discrepancies but he clearly could not and the prosecution’s hands were tied. As a consequence, AE312-347 is not properly before the Court and is currently inadmissible as it cannot be verified from the moment the data was extracted from P79a and P80a to its current format within AE Bdl. All is not lost however because the prosecution still retains the telephone P71 upon which the data is stored and have the image retained upon the server plus the original master copies of that image placed upon a read only CD ROM which DPC 54124 produced. They will need to carry out this exercise again and this time do it properly.

Analysis

21. The prosecution maintains that the Call Log under AE 26‑43 (also at AE 164‑181), was extracted from the imaged data by SPC 54124 on 23 August 2019. It remains upon the master disc P79. It is a record by time and date of outgoing and incoming calls between two numbers, 52447542 and 97928545. The defendant confirmed in his video recorded interview (“VRI”) at counters 94 and 310, that the phone he alone used was 52447542 and that he rang 97928545 to contact Ah Sing. It is therefore relevant to the issue before the Court, which is whether the defendant carried out an act or acts which were more than merely preparatory to the trafficking in dangerous drugs which was carried out by Ah Sing. From that Call Log it is open to Mr Laskey to ask the jury to infer that the defendant called Ah Sing on those dates at the recorded times. Subject to the issue of provenance, which the prosecution has yet to comply with, I can see no reason why this evidence is inadmissible. S22A is not triggered. It is not needed to rely upon it as evidence of the truth of a fact therein. It is relevant to show that there was contact between the defendant and Ah Sing but no more. Of course, that is already available from the VRI and from DPC 4980. It is no part of the defendant’s case that he does not know Ah Sing.

22. As for the Call Log, there are 18 calls between the two phones on 9 February 2019 up to the point at which Ah Sing was arrested at 19:37 hours. 11 of those calls could not be connected, and 5 of the remaining 7 calls were of 1 or 2 seconds duration. Only 2 calls suggest a connection of 49 seconds and 3 minutes 50 seconds. These were at 17:59 and 19:15 hours. There were 12 calls between the two numbers on 8 February 2019, 4 calls on 7 February 2019, two of which appear not to have been connected and none at all on 5 or 6 February 2019. Their value is clearly limited and highly speculative but they are admissible subject to provenance.

23. The WhatsApp messages between 52447542 and 97928545 and purportedly between the defendant and Ah Sing, cover the period from 7 January to 9 February 2019. Mr Laskey seeks to rely upon them to infer the nature of the relationship between the defendant and Ah Sing. He relies upon them as evidence of the truth e.g. that the defendant knew that Ah Sing had drugs in his possession on the evening of 9 February 2019 and s22A is triggered for this purpose. The time period covered by these WhatsApp messages is not sufficiently proximate to the events relied upon, i.e. 9 February 2019. The WhatsApp messages covering the period 7 January to 29 January 2019 inclusive, when read as a whole with other messages, suggest other possible uncharged acts and insufficient proximity to the actual TDD it is alleged that the defendant attempted to carry out. Indeed, it could be read to suggest that the majority of the incriminating evidence within these calls relates only to other uncharged acts and not to the events of 9 February 2019 at all. As a result, the content of the evidence within those dates must be excluded for this reason and because it follows that their prejudicial effect outweighs their probative value. As for the WhatsApp messages which took place on 9 February 2019, subject to the Court’s findings upon provenance, they appear to be directly related to the TDD relied upon and are relevant and admissible. There is a clear inference to be drawn that the defendant knew at that stage of the DD possessed by Ah Sing and that he was intending to visit Ah Sing to see them.

24. The WhatsApp messages between 52447542 and 54062149 on 9 February 2019 are at AE 71-90. There is no evidence as to who is the user of 54062149. For what purpose does the prosecution seek to rely upon the existence of communication between the defendant and an unknown third party? Mr Laskey submits that these should be looked at along with the evidence contained in the other messages before the Court. This is an unidentified third party and clearly suggests that the defendant intended to deal in the drugs held by Ah Sing. The Court has a number of concerns. Firstly, the third party is unidentified. There is no evidence as to the role which this person played, whether they played any actual role at all in the material events, had any first‑hand experience of what occurred or was acting or reacting to hearsay. Secondly, there are parts of the messages relating to that third party which are highly incriminating as to an uncharged act without sufficient nexus to the events at hand in and of themselves. Thirdly, the defendant himself refers to other uncharged acts. Fourthly, it refers to a future intention to carry out a criminal act not necessarily an act more than merely preparatory to this offending. The admission of this evidence therefore requires inference upon inference from an unidentified source. The whole of this evidence is unsatisfactory as it is speculative, relates to potential uncharged acts and its prejudicial effect outweighs its probative value. It may not be placed before the jury.

25. The WhatsApp messages between 52447542 and 67499386 from 4 January to 9 February 2019 are at AE 101‑163. The defendant admits to contacting Ah Hung upon this number. Once again the WhatsApp messages between 4 January and 3 February 2019 could refer to other uncharged acts and are not sufficiently proximate to the substantive offence underlying this charge. There are oblique references to the use of Ah Sing’s address and to using him as a courier but these refer to other uncharged acts and not specifically to the offence at hand. Indeed, there are no messages after 3 February until 9 February 2019. This break in communication suggests that the TDD carried out by Ah Sing was not done under the auspices of Ah Hung. Their prejudicial effect is overwhelming as they suggest a pervasive and ongoing exercise to traffic in other dangerous drugs. Even subject to a strong direction to the jury there is a significant risk they will be prejudiced by this evidence, which is in any event highly speculative and without sufficient nexus to the events of 9 February 2019. Subject to the issue of compliance with s22A, serial no. 1158 on AE331 relating to 9 February 2019 may be admissible.

Conclusion

26. Direct oral evidence from Ah Hung and Ah Sing of what they said to the defendant and what he said to them would be admissible before the Court. The prosecution are not in a position to satisfy s22A(2) because the WhatsApp messages are on an operating platform for which no witness has been called and a s22A (5) certificate has not been served. S22A (3) therefore applies and the evidence of SPC 54124 and DPC 16239 is applicable. DPC 54124 was an unimpressive witness and the manner in which he wrote his witness statements is to be deprecated but he is not a dishonest witness and no doubt he has learned a hard lesson. DPC 16239 was no better. He came to this Court ill‑prepared. This Court is not a disciplinary body for the police or other investigative authorities. It does not and should not be seen to be admonishing the police for sloppy practice by ruling evidence inadmissible, where that practice has resulted in no unfair prejudice to the defendant such that he cannot have a fair trial[17]. It matters not what happened to the real exhibit P71 after the data image was extracted. It was extracted on 15 August 2019. There has been no suggestion that anything was deleted or added to the WhatsApp messages which form the basis of the evidence. If there had been some credible evidence that such might have been the case then this evidence would surely have been rendered inadmissible as a result of the poor management by SPC 54124, DPC 16239 and DPC 8460, but also because of the poor exhibit handling which appears to be standard practice by all of the other officers. Other than when an exhibit finally makes it way to the property store (if it ever does), the police force seems to consider it perfectly acceptable to lock it up in a desk drawer (at times indefinitely) without any record of doing so. In this case for what appears to be over a year in respect of P71, 79 & 80. It must be added, the situation before the Court may have been far worse without the considerable efforts of those supporting Mr Laskey as witness after witness came ill‑prepared and frequently did an about face after being caught out with what at best the Court can only consider to be either laziness or poor management systems or both. It is most unfortunate that the weaknesses in the case management of exhibits and digital data have been shown to be endemic but there is nothing before the Court which suggest that the data captured has been corrupted either deliberately or in any other way. I find therefore that the data referred to above, as edited, is admissible under s22A as evidence of the facts contained within it if it is properly produced.

27. As the jury is to be empanelled and Mr Laskey is not yet in a position to put that evidence before the Court in proper form, as is the usual practice, he should not refer to it in opening.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr Edward Laskey, counsel‑on‑fiat, on behalf of the Department of Justice, for HKSAR

Ms Patricia E Alva, instructed by Tony Kan & Co, assigned by Director of Legal Aid, for the defendant

[1] Cyber Security and Technology Crime Bureau

[2] S22(1) and s22A(1)

[3] Under s22A(12) this extends its application to “..any device for storing, processing or retrieving information”.

[4]Secretary for Justice v Jerry Lui Kin Hong FACC 3/1999; HKSAR v Lau Shing Chung Simon FACC 6/2014

[5] Also at AE 182-204, AE 333-340

[6] Also at AE 205-230, AE341-345

[7] Also at AE 231-302, AE312-332

[8] S22A(12)

[9]R v Coulson [1997] Crim LR 886

[10] S22(1)(a)

[11] S22(5)

[12]Beckford v R [1996] 1 Cr App R 94; R v Uxbridge magistrate’s Exp Sofaer & Another (1987) 85 Cr App R 367

[13] DPC 16239

[14] Case Management and Investigation System

[15] Cyber Security and Technology Crime Bureau

[16] Case Management and Investigation System

[17]R v Beckford supra

HCCC 174/2020

[2021] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2020

______________

BETWEEN
	HKSAR
and
	LAU TING YIN	Defendant

______________

Before: Hon Campbell‑Moffat J in Court

Dates of Hearing: 14 & 17-18 May 2021

Date of Decision: 18 May 2021

________________________

R E A S O N S F O R D E C I S I O N

________________________

1. This is an application by Ms Alva on behalf of the defendant, objecting to the admissibility of the admissions against interest allegedly made by the defendant immediately prior to and at the time of his arrest and to the post record of an admission made in [P64]. Ms Alva further seeks to have the VRI [P68] rendered inadmissible. She submits that those admissions were obtained as a result of assault, intimidation, inducement and/or oppression. This would not include the first admission made by the defendant which was at the door of the flat and before any such assault took place. I assume Ms Alva wishes the Court to exercise its discretion to exclude this also if the court accepts the version of events put forward by the defendant, for it that were the case, then there was no such admission.

2. For the avoidance of doubt, and for ease of reference, anything said by the defendant and relied upon by counsel for the purposes of this application, will be referred to as admissions whether that is the case or not on the facts. I will also refer to Choi as D1.

3. The first admission in time, which is sought to be relied upon by the prosecution, occurred before arrest and caution at a time when the defendant first rang the doorbell of Flat 3905. An officer opened the door and the defendant told him that he had come to see “Ah Sing”. When asked what he wanted him for, the defendant replied “I have come to see how his stuff is coming along”. The second admission relied upon by the prosecution is allegedly what the defendant said after arrest and caution, which amounts to “Ah Sir, I merely introduced Ah Sing to Ah Hung so that he could help carry out the work”. The remaining admissions are contained within the VRI [P68].

4. In his Grounds of Objection, the defendant submits that he said neither of those statements. The thrust of his complaint is therefore that the officers are lying and not that he made these admissions involuntarily. The defendant also submits that he was never arrested and cautioned and that the only admission he made at about the time of the alleged arrest was that he had introduced Ah Sing to Ah Hung. This admission, if it can be said to be an admission, was made as a result of assault and threats from several officers.

5. As for the post record under P64, the defendant further submits that DPC 4980 did not read the contents of the post record to the defendant and did not ask the defendant to read it over to himself. The defendant was not given the opportunity to read it and had not read it. The defendant maintains that the appending of his signature on the post record and the declaration were written as a result of threats made by the officers and a physical assault, all of which occurred in the stairwell. Thereafter the defendant submits that he was not served with a Notice to Persons in Custody POL 153 at the flat. Indeed, he was never taken inside the flat at any stage. He maintains that both POL 153s, P62 and P63, were signed at the same time immediately prior to interview and without the opportunity to read them or have them read over to him.

6. The defendant takes issue with the video recorded interview (“VRI”) and the admissions against interest, again if they can be said to be that, made at that time. He maintains that, immediately before the interview took place, DPC 4980 said to him “Let’s get this done quickly and we will see if you will get bail later on”. He said this more than once. The VRI [P68] was taken some five hours after arrest and in the presence of his elder brother Lau Ting-hong.

Prosecution Case

7. DPC 4980 was called upon the voire dire. He gave evidence that he had opened the door of the flat when the defendant rang the doorbell and that he had enquired why the defendant was ringing. He told the court that the defendant had said that he wanted to see Ah Sing and that he had said he was there to see “how his stuff was coming along”. When the officer identified himself as a police officer, the defendant ran away but only got about 10 metres when he was apprehended and taken back into the flat, as the officer had formed the view that he might be involved. He was taken first into the living room so that DPC 4980 could make a report to DSgt 58725 and then to a bedroom where the dangerous drugs had been found. DPC 4980 then arrested and cautioned him for conspiracy to traffic in dangerous drugs, to which the defendant replied “Ah Sir, I merely introduced Ah Sing to Ah Hung so that he could help carry out the work”.

8. The officer made a record of that reply in his police notebook immediately after it was said and he had the defendant sign it to verify what he had said upon arrest and caution. Thereafter, he took the defendant out into the corridor a little way from the door of the flat and sat him down on a chair. At this point he made his post record. He then read it over to the defendant and asked the defendant to read it over to himself. Once he had appeared to do so, the officer provided him with a printed form upon which was the declaration. He read it to the defendant and allowed him to read it for himself. He then asked the defendant to copy the declaration onto his notebook if he agreed with it and the defendant did so. The defendant then signed the declaration and any amendments which had been made to the post record. Later they returned to the Kwai Chung police station, at which point the defendant was handed over to the Duty Sergeant. DPC 4980 asked the defendant if he wished to call his family as he was just 17 years of age and the defendant did so. As a result, they needed to wait for the defendant’s elder brother to attend before a VRI could be carried out. In the interim, DPC 4980 carried out a number of other procedures including a more thorough body search and the service of several documents for which the defendant signed. The VRI took place between 01:19 and 01:53 on 10 February 2019. The officer accepted that the defendant appeared calm and timid throughout.

9. DPC 6123 was the exhibits officer. The dangerous drugs and other items were found within the bedroom of Choi. It was this officer’s job to record and secure them pending the attendance of police dog and photographer and he was the officer who had custody of them throughout and during the journey back to the police station. He said he heard the doorbell ring but did not attend to it as he was inside the bedroom making a record of the exhibits at the time. DPC 4980 had entered the room for a short while at some point in the company of a male and had indicated the dangerous drugs but had then left the room. DPC 6123 had no more to do with that male whilst at the scene. He accepted that he had made no detailed note of this incident in either his notebook or his witness statement save for what he had said at paragraph 10.

10. DSgt 58725 was the officer in charge at the scene and maintained he had been in the living room of the flat for most of the relevant time. DPC 486 also gave evidence. He was the arresting officer of D1 and had been inside the flat at the time the doorbell rang and DPC 4980 had given chase. He was guarding D1 throughout.

Defence Case

11. The defendant elected to give evidence. He said that he had rung the doorbell of 3905 at about 8.30 pm and that someone had come to the door but he could not see past him into the flat. As he did not recognise the person who answered the door, he assumed he had made a mistake and left going in the direction of the fire escape and rear stairwell. When he did so, the defendant said that two officers DPC 6123 and DSgt 58725 had quickly given chase and taken him through the fire escape into the stairwell. DPC 6123 had then told him he was a police officer and asked the defendant if he “knew what the matter is”. The defendant had said he had no idea what the matter is. In response DPC 6123 slapped his face and DSgt 58725 took his mobile phone from his trouser pocket and asked him to unlock it. The Sgt then also slapped him and told him to unlock the phone to prove he had nothing to do with it. He then punched him in the chest two to three times. The defendant said that as he was now scared, he unlocked the phone but then the Sgt asked him for the WhatsApp password, which he also provided. After that he was asked for his ID by DPC 6123 and some 5 to 10 minutes passed before other officers appeared. According to the defendant, no one at this stage had said anything about what had happened in the flat or mentioned Choi. He gave no evidence as to what he suggests the Sgt found on the phone once it was unlocked. The new officers were identified by the defendant as DPC 4980 and DPC 486 and one other. According to the defendant, DPC 4980 said, “You know what the matter is, reveal all”, to which the defendant replied, “I have no idea what the matter is”. In chief, he said that DPC 4980 gave him many slaps whilst asking a lot of questions. Under cross‑examination he could not remember how many slaps but described it as a question or two and then a slap; then another question and a slap and so on. The defendant said he put up his hands and tried to fend off the slaps by DPC 4980 and was then handcuffed. At this point he was told to squat by DPC 486 and DPC 486 repeated the question to which the defendant gave the same answer. DPC 486 then made a threat which was, “Believe it or not, that I can plant a packet on you and then you will have your fingerprint on it.” It was at this point that the defendant said out of the blue and without any information as to the crime at hand, “I merely introduce Ah Sing to Ah Hung”.

Submissions

12. Mr Laskey on behalf of the prosecution submits that the court should apply simple common sense to the arguments raised by the defence. The defendant was not the target of the operation, there would be no reason for the officers to behave in the way suggested when he came to the door of 3905. The fact he ran away was bound to trigger a response from DPC 4980 and it was only at that point that DPC 4980 had a suspicion that the defendant might be involved but no more than that. There would be no sound reason for a group of officers to assault the defendant, they had no idea who he was or any suggestion of a role. The suggestion that they would attack a young man for no reason should be set against their obvious goodwill when they suggested the defendant should have a family member with him for interview, and the considerable wait in the middle of the night for that family member to attend. The defendant himself accepted he felt more comfortable with his brother there.

13. Ms Alva on behalf of the defendant sought to pray in aid HKSAR v Lau Ho Yin CACC 288/2011 and HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093 in respect of the alleged pre-caution admissions. If I accepted these took place, the totality of which would amount to the defendant saying that he had come to see Ah Sing and to see “how his stuff was coming along”. This was not recorded in the officer’s note book [P64] and Ms Alva submits should be rendered inadmissible. The matters before the Court today and the facts underpinning the case of Lau Ho Yin and Chan Yuk Ling are, with respect to Ms Alva, entirely different. In Lau Ho Yin the Court of Appeal considered a scenario which was highly suspicious and a situation where officers in evidence were reporting significant inculpatory comments which had not been recorded and yet the comments upon arrest and caution on each occasion were of no significance and yet had been recorded. The Court of Appeal noted in that situation the defendant should have been cautioned at a much earlier stage, that is not suggested here and these highly incriminating comments were not recorded so as to provide the defendant with an opportunity to verify them by signing the notebook. Even if the comments made by the defendant in this case could be said to be inculpatory, he said the same thing in essence on arrest and caution and he expanded upon it in interview. There is no prejudice to the defendant in respect of the words “How his stuff was coming along” save to suggest that he knew Ah Sing and that he had come to see something. What he was coming to see and why, is wholly a matter of inference. I accept that the better course is to record all conversations between officers and defendants but I do not accept that necessarily renders them inadmissible if the officer fails to contemporaneously record them. I quote the Court of Appeal at paragraph 56:

“A tribunal of fact always has an advantage over an appellate tribunal insofar as the first instance tribunal observes the witnesses, immerses itself in the details and, over the course of the hearing, secures a “feel” for the case. Where police officers give evidence, the failure to follow rules is not of itself necessarily fatal and it is right for a court to approach evidence realistically, acknowledging or recognising flaws that stem from inexperience or other factors which do not affect credibility. Yet, even so, inherent probabilities and improbabilities are always sound guides to truth and where important evidence is on its face inherently improbable, that inherent improbability should be addressed. There may be an acceptable explanation for it. But where there is not an acceptable explanation for it, an inherent improbability should give pause for real concern about the reliability of the testimony on that point. Whether that concern, in the context of the whole of the evidence in the case, results in an outcome favourable to one side or the other must be fact and evidence specific.”

14. Chan Yuk Ling refers to an arrest for TDD where the alleged pre‑caution admissions amounted to a full confession with the defendant indicating where the drugs were in her shop. There was no good reason why such a confession would not be recorded in an officer’s notebook if it had been made regardless of whether the officer had an opportunity to arrest and caution beforehand. That is not the case before this Court. This was merely an introductory communication with an enquiry as to who the defendant was and no more.

Discussion

15. The defendant was adamant under cross‑examination that he had genuinely thought that he had made a mistake when he rang the doorbell of 3905 and someone he did not know appeared at the door. The person at the door had opened it only very slightly so that he could not see the living room inside and had not spoken to him. It was the defendant who spoke and that was to say that and he thought he had the wrong address. At no stage in his evidence does he accept that he knew the flat belonged to Ah Sing, nor does he accept he was ever taken inside or that he knew what had occurred within. Therefore, his volunteering after multiple assaults to the effect of “I only introduce Ah Sing to Ah Hung”appears somewhat out of context. If no one had spoken to him and he had not seen what was happening inside the flat, what was it they were telling him to admit?

16. The police witnesses agreed they did not know of the defendant before the evening of 9 February 2019. There has been no suggestion by the defence that they did. The defendant agreed he did not know the officers. He said he rang the bell of Room 3905 and maintains that the large and almost solid metal gate is closed when he does so despite the fact that several officers are inside the flat and would have been coming and going freely after they had arrested D1. There is a small area in the metal gate, at head height, allowing callers to speak to residents but otherwise this is a substantial security door if it was actually closed as the defendant suggested. It would have taken some time to open sufficiently for a large officer, as 6123 was, to get through and to follow the defendant by which time a lanky young lad such as he is could have reached the fire escape or taken the alternative route of the lift. This is the point at which the court has to look at inherent probability and improbability. Why would any officer pay any attention to a caller they did not know if the caller had simply stated he had pressed the incorrect doorbell and walked calmly away? Even if the caller had run away, why would an officer or officers need to take him into the rear stairwell when they had control of the flat? According to the defendant five officers out of the nine officers at the scene, were in this exercise in the stairwell together, including the on‑site officer in charge. Why hide their behaviour in a stairwell? Why leave over 6 kgs of drugs, D1 and the other family members under the control of just three officers in order to apprehend a youngster they did not know and had no intelligence about?

17. I listened carefully to all of the witnesses. DPC 4980, in particular, was quite pedantic and not at all afraid to disagree with prosecution counsel where appropriate. He appeared to have a meticulous approach to the way he carried out his job and could explain the reasoning for why he did or did not do any particular action. I consider in particular detail Ms Alva’s point on the use of the Chinese character for outside in his notebook and his explanation for that. I found him wholly believable and his actions were in accordance with normal police procedure. I also note that normal police procedure is for the arresting officer to interview the arrestee and that was done in this case. I also note that it would have been acceptable for DPC 4980 to interview the defendant without an appropriate adult because of his age and yet he had still advised him to ring to have a family member present and given him every opportunity to find one despite the hour of the day. DPC 4980 was prepared to wait a significant amount of time for the defendant’s elder brother to attend. I could find no fault with any of the other witnesses. It is clear on the papers that DPC 6123 was the exhibits officer and that the arrest of D1 pre-dated that of the defendant. I do not accept therefore that DPC 6123 would break off from his recording and guarding duties in respect of the exhibits including approximately 6 kg of dangerous drugs in order to follow a young man who had said nothing of any consequence having rung the wrong door bell. There would have been no logical reason why he would have been at the door at that stage and every reason why other unassigned officers would have been in the living room adjacent to the door and could deal with it. I also do not accept that DSgt 58725, who was in charge of the events, would leave his post adjacent to 6 kg of dangerous drugs and his arrested person, in order to follow the same young man when he had other officers who could do so.

18. I do not accept the defendant was assaulted. If the defendant had been assaulted, I would have expected him to know what injuries he received as a result if any and I would also have expected him to make a complaint to the Station Sgt about his treatment. It could be that the injuries were slight but I would expect him to be able to say so. As Ms Alva submitted, it does not matter what force was used nor what injuries he incurred, any assault and any threats will do if it renders his will susceptible to manipulation. But I note that the defendant did not ask for medical assistance and under cross‑examination he said he had not “paid attention” to any injuries later when at the police station. He made no complaint to his brother nor to the magistrate when he first appeared before one. Nor did he do so thereafter even though he was represented. I do not accept that the defendant was taken to a rear stairwell and assaulted or threatened by any officer. I find the incident occurred as related by DPC 4980 who was with the defendant throughout and the evidence from beginning to end was entirely consistent with what the defendant said voluntarily in interview which was in essence that he had simply introduced one friend to another and no more. It is arguable whether any such words were in fact admissions against interest. This ruling assumes the post record comment and the VRI contain such admissions only for the purposes of argument.

19. This is a case, on the voire dire as to involuntariness, as Mr Laskey pointed out, which rests upon two wholly conflicting accounts of events. The improbability of officers leaving their allocated posts guarding a defendant and a large quantity of drugs is marked. As is the idea that five police officers would assault a young man without cause.

20. To the extent that it can be said he made any admissions against interest I find that everything he said when he was at the doorway of Room 3905, after arrest and caution and in the VRI were made voluntarily. They are admissible in evidence. The VRI subject to appropriate editing, and any further argument as to other matters, P68, is admissible in its edited form.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr Edward Laskey, counsel‑on‑fiat, on behalf of the Department of Justice, for HKSAR

Ms Patricia E Alva, instructed by Tony Kan & Co, assigned by Director of Legal Aid, for the defendant

HKSAR v. LAU TING YIN

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