HKSAR v. THAPA MANISH AND ANOTHER

DCCC 611/2019 [2021] HKDC 1188 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 611 OF 2019 ----------------------------------------- HKSAR v THAPA Manish (“D1”) PUN Kishna (“D2”) ----------------------------------------- Before: HH Judge E Yip Date: 16th September 2021(Reasons for ruling); (Ruling made on 24th August 2021) Present: Ms ALVA Patricia E., Counsel on Fiat, for HKSAR Mr Mohnani Dheeraj Suresh, of M/s Mohnani & Associates, assigned by the Director of Legal Aid, for the 1st defendant Ms Bharato S. Manek, of M/s B. Manek & Co, assigned by the Director of Legal Aid, for the 2nd defendant Offence: [1] Wounding with intent (有意圖而傷人罪) [2] Common assault (普通襲擊罪) ----------------------------------------- REASONS FOR RULING ON VIDEO-RECORDED INTERVIEWS AND NOTEBOOK ENTRIES ----------------------------------------- Charge D1 pleads not guilty to wounding with intent (Charge 1). D2 pleads not guilty to common assault (Charge 2). Prosecution case in brief PW1 was a customer of a wine bar on the ground level of Staunton Street, Central, Hong Kong (“the Bar”). D1 and D2 worked as the bartenders. PW1 and his wife PW2 went there for drinks on 20th October 2018. There was a ruckus between them, resulting in PW1 being wounded by D1 and assaulted by D2. There was also an eye-witness PW4. The prosecution rely on D1’s one and D2’s two VRIs, one notebook entry for each which recorded consent by the defendant and the exhibits seized, if any, in the house-search relating to the defendant. Defence stance D1 and D2 both allege that their female employer told them that she knew some people in the police, it was a small matter, the police were asking them to surrender at the police station to tell the police what had happened in the incident, he would have bail, and the case would finish shortly. Before D2’s VRIs, in the presence of the police, the Nepali-English interpreter Mr. S told D2 that if he cooperated with the police, he would have bail. Before D1’s VRI, in the presence of the police, Mr. S told D1 that as D2 had told the police everything in the VRI, that D2’s bail was being processed and would be able to go home, that it was D1’s turn to tell what happened that day; and that the quicker he told what had happened, the quicker his bail would be processed. D1 alleges that during the interview he was in pain and discomfort because PW1 had injured his right eye area. This was obvious to the VRI-taker. The VRIs and the notebook entries were therefore involuntarily made. As the prosecution case develops, D1 and D2 take on an additional allegation, which is not mentioned in the grounds of objection, that before the VRIs and the house-search, the investigation team had told them in the team office that bail at $5,000 would be granted to them after the VRIs and their respective house-searches if they cooperated. D1 had only $70 cash on him according to the Prisoner Personal Property Receipt. They allowed D1 to use a team member’s cellphone to call D1’s mother to get the $5,000 and hand it to D1 during D1’s house-search. D1 got the money at the house-search. They arranged for D1 not to be searched by the report room team when back at the police station, so that the $5,000 kept by D1 would not be revealed. D1 paid up the bail money from his own pocket and was released. D2 had only $156. They allowed D2 to use the report room telephone to call his aunt to get the money. During D2’s house-search, D2 learned from his mother that his aunt had gone to the police station with the $5,000. D2’s aunt later saw D2 at the report room and gave the bail money to D2. D2 paid up the bail money and was released. Prosecution case on admissibility of VRIs and notebook entries This Court adopts the alternative procedure. PW7 PC 25594 was on duty at the Report Room when D1 and D2 showed up at 6:30 p.m. on 22nd October 2018. He was not part of the investigation team. He had no idea of the case or the incident relating to D1 and D2. He looked up the case file from the computer and took instructions from his superior to arrest them for wounding. They were body-searched and taken into custody at the detention cell at the Report Room pending investigation. The Prisoner’s Personal Property Receipt recorded $70 cash with D1 and $156 cash with D2. PW8 DPC12898, who conducted the VRIs, and PW11 Mr. S are the main witnesses. Other police officers in the same investigation team are called. In response to the additional allegation of pre-approved bail of $5,000, the prosecution call additional witnesses, including the duty officers team who worked at the Report Room. Mr. S had no memory of what had happened, as the task he did on that occasion was nothing unusual. It had been his practice to interpret faithfully. He had not made any inducement of bail to anyone, including D1 or D2. The investigation team officers deny pre-approved bail at $5,000 promised to D1 and D2 if D1 and D2 cooperated in the VRIs and the house-searches. The duty officers team says that detainees brought out from the report room by the investigation team are body-searched only when they are being returned to the report room for custody. As regards a visitor seeing the detainee or any money being handed over to the detainee, there is usually a record. Defence case D1 submits no case to answer. Written submissions are made. D2 has no submissions. I rule a case to answer for both defendants. D1 gives evidence. He had been employed as a bartender at the Bar for 1 year by the date of the incident. His supervisor was R -, the assistant manager. R -’s superior was B -. B - was under the boss, M -. At 3 – 4 a.m. on 21st October 2018, B - called him. She said she had given his identity and address to the police. She said M - told her she knew some police friends; the police told M - that it was a small case; instead of having the police come to him he had better go to the police; after that he could come out on bail; and he would not have much problem with the police. Apart from B -, on the night of 21st October 2021, D1’s father also told him that he had drinks with his uncle and a friend from U.K. at the Bar. They did not see D1 there. R - told him that the police were looking for him (D1) and that it was to his benefit if he went to the police station to tell the police what had happened. D1 believed that if he surrendered to the police, next time the case would be finished. He did not know if M - actually had police friends. He was afraid that the police would come to his home. If he did not surrender himself to the police, he was afraid that it would affect his work, such as being paid less salary or even dismissed from work. He himself also wanted to go to the police station to resolve the matter. Although his right eye area was still in pain, on 22nd October 2018 he surrendered himself at the Central Police Station with D2. D1 was arrested for wounding by PW7 at the Report Room. He was detained in the detention cell at the Report Room. Before the VRI, he and D2 were brought to a room occupied by the investigation team near the VRI room. PW6 DSSgt MA was there with 4 or 5 police officers. PW6 told him that they could have bail at $5,000 if they cooperated in the coming VRIs and the house-searches. If he had been cautioned for the more serious offence of wounding contrary to section 17, he would not have answered questions in the VRI. PW1 had assaulted him in the incident on 20th October 2018. He was injured. He went with D2 to see a doctor, Dr. LEUNG -, of TY Health Care at 6 p.m. on 21st October 2018. His medical report stated “mild tenderness and swelling with superficial abrasion over his right periorbital area”. He had handed this medical report to a certain police officer before his VRI. The police officers called by the prosecution deny that they ever received this medical report. D1 did not have $5,000 on him. On board the police vehicle on the way to the house-search, he was allowed to use a police officer’s cellphone to call his mother to tell her about the bail of $5,000. During the house-search, her mother gave him $5,000 in the presence of the police. He used the money to pay for his bail. DW1 is R -. In the early hours on 21st October 2018, the police came to the Bar to investigate. She did not know what was talked between M – and B – and the police. For her part, the police asked her to tell D1 and D2 to go to the police station or contact the police. B - told her that, from what she (B -) heard from M -, if D1 and D2 surrendered at the police station, their sentences would be lower. DW2 is D1’s father. He ran a grocery shop. The working hours were 11 a.m. – 11 p.m. or 12 a.m. On the night of 21st October 2018, he went for a drink with D1’s uncle and a friend at the Bar. As he did not see D1 there, he asked R - about D1. R - told him that an incident had happened, which was a small trouble, and that the police were looking for D1 and wanted D1 to go to the police station. DW3 is D1’s mother. She lived with DW2 and D1. She helped D1 run the shop, which was in Yau Ma Tei, close to home and within walking distance. In the morning of 22nd October 2018, D1 told her that he had asked D1 to go to the police station for a small matter. She did not ask him further. On the night of 23rd October 2018, she received a call from a number she did not recognize. D1 was speaking on the other end. He needed $5,000 for the police and said he would come home after that. After 15 – 20 minutes, when the doorbell rang, she opened the door and saw D1 with some police officers. The party entered the living room. She asked D1 and the police what happened. No one replied. She gave him $5,000. The police said, “Thank you.” The party left. There was no house-search. In cross-examination, she denies that she did not pass any money to D1, that the police officers did not say, “Thanks you,” and that a house-search was actually conducted. D2 gives evidence. He was a bartender employed by the Bar. M – was the boss. B – was the manager. R – (DW1) was the assistant manager. In the early hours on 21st October 2018, B - called him. She said that the police had been told of his identity and home address, that he should surrender at the police station to tell the police what had happened, and that the police would release him. He was afraid that if he did not go to the police station, he might be dismissed by B -, and the police would come to his home to arrest him. Despite his body pain due to PW1’s assault, he surrendered himself at the Central Police Station on 22nd October 2018 with D1. (His body pain is not mentioned in his grounds of objection as something affecting his VRI.) PW1 assaulted him in the incident on 20th October 2018. He was injured. He went with D2 to see a doctor, Dr. LEUNG -, of TY Health Care at 6 p.m. on 21st October 2018. His medical report stated “tenderness over his neck and low back”. He had handed this medical report to a certain police officer before his VRI. The police officers called by the prosecution deny that they have ever received this medical report. DW4 is D2’s aunt. She lived with D2’s family comprising his father, mother, and brother. She worked in a hotpot kitchen with D2’s mother. The kitchen was near their home. At night on 22nd October 2018, D2 called her and told her he would be kept in the police station overnight. He called her again the following day, at about 9 p.m. He said he needed $5,000 for bail. As she could not go out together with D2’s mother from the kitchen and D2’s mother did not understand that much, she took time-off from her employer to get the money and go to the police station. The money was D2’s mother’s money put aside for the rent. During the house-search, she was not present. She was on the way to the police station. At the Report Room, she said she was D2’s aunt bringing money to D2. After waiting for an hour, two police officers brought out D2. D2 took the $5,000 from her. No police officers asked for her identification or asked her to sign anything. In cross-examination, she denies that although D1 had made two phone calls to her on different occasions, the calls were not about bail money. My findings Only D1 puts in written submissions. All parties make oral submissions. If the events are arranged in sequence, D1’s written submissions shall bear the following headings: - What caused D1 and D2 to surrender at Central Police Station (paras. 10 – 12) Inducement of bail upon completion of procedure including VRI (paras. 13 – 21) When and where did D1 get $5,000 for bail (paras. 5 – 9) In most aspects, the aforesaid are equally applicable to D2. Submissions: (1) What caused D1 and D2 to surrender at Central Police Station (paras. 11 – 12) In para. 11, D1’s counsel submits that it is plausible that the police officers have left a message, requesting the management staff to ask D1 and D2 to surrender at the police station as soon as possible. The police officers deny that they have left such a message. I believe the police officers. The police could go to their home addresses at any time to look for them instead of passively waiting for the management staff to contact D1 and D2. The police did not have to rely on the management staff. On the one hand, I do not think that anyone, whether the police or the Bar staff, asking them to surrender at the police station, without more, can be regarded as a threat. In the police station, they could exercise their right of silence, like what D1 did in the early part of his VRI. On the other hand, the promise of a lower sentence or it being a small matter that will finish shortly, if established, can be an inducement. Although D2 in his VRI stated that his manager (supposedly DW1) had told him that there was a case filed against D1 and him and asked them to surrender to the police, he did not state that DW1 had told him anything about a lower sentence or it being a small matter that would finish shortly. Besides, neither D1 nor D2 in court says that he had told the police at any stage that he came to the police station upon being promised a lower sentence or that it was a small matter that would finish shortly. The incident of a customer seriously injured by a glass object just after coming out of the Bar was not a small matter from any perspective. DW1’s and DW2’s evidence is that DW1 told DW2 that it was a small trouble and that her company had talked to the police already. I would expect a caring father like DW2 to be very anxious to know what incident it was that involved the police going after his son and in what capacity. To the contrary, without being told or asking to be told of the slightest details, DW2 went on drinking socially. I reject their evidence here. I do not believe that D1 and D2 had been promised a lower sentence or it being a small matter by DW1 or anyone. I am satisfied that their decision to surrender at the police station was entirely voluntary. Submissions: (2) Inducement of bail upon completion of procedure including VRI (paras. 13 – 21) In para. 13, D1 and D2 allege that before the VRIs and house-searches, PW6 DSSgt MA had induced them to cooperate by promising them bail at $5,000. Counsel relies on D1’s knowledge of a room on the same floor of the VRI room, in which the investigation team was at work as evidence of such allegation. As I see it, the sight of the investigation team entering or at work in a room does not necessarily imply D1 or D2 has been put inside to be induced. In para. 14, counsel relies on Mr. S’s not having any memory of what happened when he interpreted for D1 and D2 as an indicator of inducing, on behalf of the police whether voluntarily or vicariously, them to cooperate in return for bail. I see nothing unusual for Mr. S not having any memory of what happened, as the task he did was nothing unusual. He says that it has been his practice to interpret faithfully. He has not ever made any inducement of bail to anyone in his career. I believe his evidence. In para. 15, counsel queries why D1 (also applicable to D2) was not cautioned for wounding with intent contrary to section 17 when he surrendered at the police station. He was only cautioned for the lesser offence of wounding contrary to section 19. The police officers say that at that time the police were not yet sure whether it was a case of wounding with intent. I find it a reasonable stance at that stage as there were torn clothes, necklace and nametag seized at the scene, potentially a case of self-defence or disproportionate self-defence open to wounding without intent. I note that this matter is not mentioned in the grounds of objection. D1 now complains that if he had been cautioned for the more serious offence, he would not have answered questions in the VRI. First of all, I do not accept that the police have misled him in anyway. Secondly, if he had regarded it so important to know precisely which kind of wounding offence it was, so that he could decide whether to talk or not in the VRI, he would have asked the police to clarify. He would not have assumed without clarification that it was the lesser kind of wounding. Thirdly, he was properly cautioned before he answered questions in the VRI. In para. 16, counsel submits that upon being asked, “Regarding this wounding case, is there anything you want to say?” at # 115, D1 replied, “No, I don’t have anything (to say),” at # 118. The interviewing officer PW8 ought not to have asked any more questions. I note that the next question from PW8 was “Well, now, I am going to continue to make enquiries of you into this wounding case”. D1’s answer was “Okay” at #126. PW8 cautioned D1 again at #127. D1 replied “Okay” at #131. PW8 then asked, “What is your occupation?” D1 replied “Bartender” at #136. PW8 asked some questions about the nature and system of work. D1 answered without objection. At # 225, PW8 asked about the working hours on 20/10/2018. D1 replied, “I started to work from 5:30,” at #228. Without PW8 saying or asking anything, D1 volunteered, “And then after the fighting happened, just like that, I don’t recall when I left,” at # 230. PW8 asked, “Can you tell (us) about what fighting case was (it)?” at # 233. D1 replied that it was about the lost credit card. PW8 continued to ask about the people involved with the card. It was a subject-matter initiated by D1. PW8 followed it up with questions, to which D1 answered without objection. At # 264, PW8 returned to the subject-matter of the fighting case D1 talked of before the card, “Can (you) further elaborate on what fighting case (it) was (and) what did (it) have to do with the white person?” D1 elaborated on where the people were. At # 272, PW8 asked, “What happened?” D1 described how the white man came for the card. At # 277, PW8 asked, “And then?” D1 continued with how it developed into a fight upon PW8 asking him, “And then?”, “What next?” or to clarify the meaning of a word or phrase of his answer, from # 292 to # 452. As I see it, PW8’s questions did not circumvent D1’s right to remain silent. They were fair and flowed naturally from D1’s answers. They were not tricky or oppressive. In para. 17, counsel criticizes Mr. S for his “gentle/polite command/persuasion to tell”. He is said to be coaxing D1 into telling things. I find his manner and expression both appropriate as the interpreter. I do not agree with this criticism. In para. 18, counsel submits that the police tricked D1 into talking by undercharging D1 with wounding contrary to section 19. Another trick is not to tell him that he was the suspect. As I have explained before, the reference to wounding simpliciter was an accurate and reasonable one. No doubt he knew he was the suspect, otherwise he would not have been arrested for wounding. There was no trickery. I do not see how it prejudiced D1 (or D2). In para. 19, counsel submits that although no injuries can be seen on the APS photos of D1, D1’s medical report stated that at around 6:00 p.m. on 21st October 2018, “there were mild tenderness and swelling with superficial abrasion over his right periorbital area.” Counsel suggests that despite such injuries, which PW8 must have noticed, PW8 proceeded with the VRI. D1 says that he was actually in pain. I do not think the injuries could be seen by PW8. I believe that the police officers were not given his medical report. Actually, before asking about the case, PW8 asked him if he was physically fit to continue with the VRI. He replied that he was. I believe his reply was truthful. In para. 20, counsel submits that at # 109 and 127, PW8 said, “what you say will be … given in evidence.” Mr. S interpreted it as “[whatever you say] may be given in evidence” at # 111 and 129; Mr. S therefore misled D1 into thinking that there was a chance that whatever he said would not be given in evidence. I do not see how the phrase “may be given in evidence” could make D1 assume that whatever he said would not be used as evidence. In para. 21, counsel submits that M - and B - were not called as witnesses to rebut the defence suggestion that no message to surrender was left by the police officers; the prosecution should call them; they would be cooperative as the incident might have repercussions regarding the Bar’s liquor licensing; and they had the motive to direct D1 and D2 to surrender to the police. I do not see how the incident could affect the Bar’s liquor licensing. Counsel does not elaborate how, either. If the defence want to suggest a case based on their evidence, in order to discharge the evidential burden, it is for the defence to call them. It remains for the prosecution to discharge the persuasive burden to prove voluntariness and fairness of the VRIs and the notebook entries. The prosecution had their last-known contact information available to the defence. The defence did not call them. Submissions (3): When and where did D1 get $5,000 for bail (paras. 5 – 9) In para. 5, counsel refers to the general practice for an arrested person to be searched upon being placed in custody under the duty officer at the Report Room. D1 had only $70 (while D2 had only $156) according to the Prisoner Person Property List of 22nd October 2018 at 2139 hours when he was body-searched by the duty officers team and first detained at the Report Room. However, he was not searched by the duty officers team on 23rd October 2018 upon returning to the police station after the house-search. There was no updating of, or change in, the Prisoner Person Property List. There was no record of anyone visiting D1 or passing any money to him at the Report Room before he personally paid up the $5,000 bail and got released from the police station. It supports the defence case of bail set at $5,000 before VRI and house-search then implemented by the police allowing him to take $5,000 from his mother DW3 during the house-search. D1’s mother DW3 received the call from him about 15 – 20 minutes before he showed up at the door with the police. The house-search was at between 2318 and 2328 hours while his VRI had completed beforehand, at 2211 hours. She says no house-search was conducted. The defence in substance suggest that the house-search was a front to let him get bail money from home. I find her evidence implausible that, with his inculpatory VRI already completed, the police did not have to get D1 to cooperate anymore. There was no need to stage a house-search only to let D1 get the money from home. The natural course would be to let D1 call home from the police station to ask his family member to bring the bail money to the police station. A shirt and a vest were recovered from D2’s house-search. There is no suggestion that money was passed to him during the house-search. DW4 brought $5,000 to the police station for his bail. DW4, who is D2’s aunt, went to the Report Room of the Central Police Station on the night of 23rd October 2018. She told the police officers that she was D2’s aunt and wanted to see D2. After waiting for an hour, D2 was brought out to see her. She gave $5,000 to D2. No one asked for her identification or asked her to sign anything. Neither her visit to D2 nor her passing money to D2 was recorded. PW16 was WDPC 19077, she was the duty officer at the Central Police Station who processed D1’s and D2’s bail by receiving $5,000 each from them directly. Her own practice is to make a record of any visitor for detained persons or any money passed to detained persons. She expects the duty officers’ team to record this on the Detention Notes of the detained person. There is no record of anyone visiting or passing money to D1 and D2. She cannot explain why. D1 says that the police did nothing in the house-search except to allow D1 to take $5,000 from DW3. His case is built upon the absence of police record of anyone visiting or handing over money to him, so that he must have got the money from his family during the house-search. As seen in the case of DW4, DW4 visited and passed money to D2 at the Report Room but the duty officers team has not made any record. Defence counsel do not suggest any collusion between the duty officers team and the investigation team. I think it possible that someone had brought money to D1 at the police station without being recorded. As said hereinbefore, I reject D1’s allegation that DW3 passed him the bail money during the house-search. The reason, I repeat here, is that D1 had already given an inculpatory VRI before the house-search, so that the investigation team did not have to get D1 to cooperate anymore. Instead of staging a house-search, they could simply let him call home from the police station to get a family member to bring the bail money to the police station. I do not believe that the investigation team had told D1 and D2 before VRIs and their house-searches that they could have bail if they cooperated. Conclusion The grounds of objection are not made out. I rule D1’s and D2’s VRIs and the notebook entries admissible. ( E Yip ) District Judge