HKSAR v Tse Hin Yeung
Court of Appeal
Criminal Appeal No. 200 of 2014
Lunn V-P, Pang JA and Maggie Poon J
12 July 2016

Confessions – voluntariness – directions – approach where defendant’s out-of-court statements alleged to be result of oppression – failure to give Mushtaq direction material irregularity

D was convicted of trafficking in a dangerous drug. The prosecution case was that police observed D enter an eatery carrying a bag and was soon joined by X, a woman. When asked what was in the bag, D replied “It’s K Chai” and on arrest and caution, D said, “It has nothing to do with the girl.  I collected the goods for others just for the reward of $1,500.” The bag contained a box of “beer” containing eight “milk” cartons concealing ketamine. D later read and signed the written post-record. In a video-recorded interview (“VRI”), D stated that he thought the drugs were “K Chai” and X did not know he had dangerous drugs. At trial, D testified that he was unaware there were dangerous drugs in the bag; the bag belonged to X and she left it with him while she went to an ATM and he carried it into the eatery to meet her; he signed the post-record because of police threats not to arrange for an insulin injection for his diabetes until he did so; his admissions in the VRI were fabricated by the police who told him what to say beforehand and he only participated in it because he feared violence and the injection being withheld. D applied for leave to appeal out of time against conviction.

Held, granting the application, treating the hearing as the appeal and allowing the appeal by quashing the conviction but ordering a retrial on a fresh indictment, that the Deputy Judge failed to give a Mushtaq direction to the jury, that if D’s out-of-court statements “were or may have been obtained” as a result of oppression “you must disregard” the admissions. It was the crucial issue in the case, particularly as D denied making the confessions. The Deputy Judge’s failure to direct the jury as to their approach to the use of such statements, given the issue of the circumstances of impropriety in which D testified they were obtained, was a material irregularity in the trial.

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