HKSAR v. KWOK KAM LAN

CACC 460/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 460 OF 1999

(ON APPEAL FROM DCCC 495/1999)

__________________

______________

J U D G M E N T

______________

Hon Mayo VP (giving the judgment of the Court):

1. The applicant was charged with two conspiracy counts relating to trafficking in dangerous drugs and one of the substantive offence. After a trial in the District Court before Deputy Judge Candy the applicant was convicted on the two conspiracy counts and acquitted on the substantive count. She was sentenced to a total sentence of 5 years imprisonment. She now seeks leave to appeal against these convictions and the sentences imposed.

2. The particulars of the two conspiracy counts read:

"1st Charge

Particulars of Offence

KWOK Kam-lan, on or about the 22nd day of April 1999, in Hong Kong, conspired with CHAN Yuen-ting to unlawfully traffic in a dangerous drug, namely heroin.

3rd Charge

Particulars of Offence

KWOK Kam-lan, on divers days between an unknown day of January 1999 and the 26th day of April 1999, in Hong Kong, conspired with MAN Man-tai to unlawfully traffic in a dangerous drug, namely heroin."

3. The two counts were to an extent mirror images of each other. The conspiracy in the first count related to the applicant obtaining the dangerous drugs in question and in the second to supplying some of these dangerous drugs to the conspirator named in the third count Mr MAN. One of the notable features of the case being that Mr MAN testified against the applicant in the trial having received an immunity from prosecution.

4. On 27 April 1999 a team of ICAC officers obtained a search warrant to search three premises allegedly used by the applicant and her husband.

5. Prior to any search being undertaken the applicant was seen coming out of a noodle shop and was arrested and cautioned. She was taken back to unit 11 at 192 Shung Ching San Chuen. She was searched and a number of $10 coins were found in her handbag. Also a deposit slip was found which indicated that $23,900 had been paid by the applicant into an account in the name of CHAN Yuen-ting the lady named in the first count.

6. According to the prosecution case the officers interviewed the applicant under caution. During the course of the interview she stated that the $10 coins represented the proceeds of sale of cigarettes she had sold upon which no duty had been paid. She went on to state that $6,000 of the moneys paid to Madam CHAN represented the purchase price of 60 pellets of white powder she had bought from Madam CHAN. She had in turn sold some of these to Mr MAN. The balance of moneys related to cigarettes she had bought from her.

7. At the conclusion of this interview the applicant had declined to sign the officer's notebook which contained the officer's note of the questions and answers. The reason she gave for this being that she was illiterate and unable to read the contents of the note.

8. Following this the officers conducted a search of unit 5 at 192 Shung Ching San Chuen. They managed to gain access to this unit by using a key which had been found at unit 11 in the building. The dangerous drugs referred to in the second count upon which the applicant was acquitted were found in unit 5. There was evidence that unit 5 had been leased by the applicant's husband. It is apparent from the Judge's reasons for verdict that the reason why the applicant was acquitted on the second count was because he could not be sure that the dangerous drugs had not belonged to the husband.

9. It should be added that when the search was conducted at unit 5 it was video taped. Following this the applicant was invited to make a cautioned statement which was video taped in the presence of her solicitor. She made an exculpatory statement although it has to be added that this interview was to a considerable extent focused upon the dangerous drugs which had been found in unit 5.

10. What is however highly significant about this interview is that when the applicant was denying her involvement in dangerous drugs the officer conducting the interview made no reference whatever to the verbal admissions which allegedly had previously been made by her.

11. The evidence on the first count consisted of the applicant's verbal cautioned statement and the deposit slip which had been referred to and was to an extent supplemented by Mr MAN's evidence. The admissibility of the cautioned statement was contested at the trial. The main allegation made against the officers was that they had made insulting remarks. The relevant officers gave evidence on the voir dire as did the applicant. The Judge accepted the officers as reliable witnesses. He did not consider the applicant to be a credible witness. In any event he was satisfied at the appropriate level that the statement had been made and that it had been voluntarily. He was also satisfied that the contents of the statement were true. The applicant did not give evidence on the main issue. The Judge was satisfied that the prosecution had proved the conspiracy in the first charge.

12. On the third charge the main evidence was Mr MAN's evidence. As stated earlier he gave evidence under an immunity. He had however been convicted of trafficking in dangerous drugs and was awaiting sentence. The Judge stated that he was very cautious in accepting Mr MAN's testimony. He gave evidence that prior to the events in question he had assisted the applicant in selling contraband cigarettes. He had been convicted of an offence in relation to this and sentenced to prison. After his release from prison he had met the applicant who has suggested that she could sell white powder pellets to him. He had eventually accepted this offer. In turn he had supplied some of the pellets to his family and friends. He said that on ten occasions he had obtained pellets from the applicant.

13. There was also the evidence of the applicant's verbal admission which the Judge accepted as supporting Mr MAN's testimony. The Judge also found this charge proved.

14. There is one substantive ground of appeal. It is that the Judge erred in failing to reconsider his decision to admit the verbal admissions, allegedly made to PW1, LAU Kit-yin, by the applicant, in the light of his inability to resolve the conflict between those admissions and the evidence of PW11, MAN Man-tai as to the date, place and method of delivery of the last consignment of drugs received by MAN, prior to the applicant's arrest.

15. In the course of a most able submission Mr Marash SC for the applicant highlighted a number of very unsatisfactory aspects concerning the verbal statement and compared the evidence contained in the statement with Mr MAN's evidence which he submitted was wholly unreliable.

16. So far as the statement was concerned he pointed out the inherent improbability of the applicant making the admission concerning the dangerous drugs. The applicant has had a chequered history in the past. However her convictions have related to dealing in cigarettes upon which duty had not been paid. She had never been convicted of any offence involving dangerous drugs. There was no reason why she should suddenly unburden herself concerning the dangerous drugs and then shortly after this deny any such thing in the interview which was video taped.

17. In this connection Mr Marash observed that while ICAC officers had seen fit to video the search in unit 5 they had not video taped the question and answer session when the applicant had allegedly made her confession.

18. Mr Marash also pointed to the remarkable omission of the officers conducting the interview to make reference to the earlier interview when the applicant had admitted buying the white powder pellets and selling them on to Mr MAN.

19. Mr Marash then went on to compare what the applicant said in her statement with Mr MAN's evidence.

20. To say the least of it Mr MAN was an unsatisfactory witness. The evidence he gave in court was substantially at variance with what he had said in earlier statements. He had been interviewed on 28 April 1999 which was one day after the applicant's arrest.

21. In his evidence he said that the last delivery of dangerous drugs to him had been on 26 April 1999. Significantly the particulars concerning this delivery were entirely at variance with the particulars allegedly given by the applicant. The date, the time and the place of delivery were all different.

22. In addition to this although in an earlier statement Mr MAN had referred to the lawn in the vicinity of the applicant's residence he denied the existence of any lawn at the trial. According to the applicant she had made the final delivery at the lawn. It was also of significance that after the applicant had made this admission no serious attempt was made by the officers to undertake a search to ascertain whether the dangerous drugs were still at the location which had been indicated by the applicant.

23. Mr Marash submitted that the Judge had not in his reasons for verdict satisfactorily dealt with these serious inconsistencies.

24. What was clear was that it was not possible to reconcile very important parts of Mr MAN's evidence with the contents of the applicant's verbal statement. It can be seen from the facts of this case that the Judge relied upon the statement and the evidence of Mr MAN for both these counts and if either the statement or Mr MAN's evidence could not properly be relied upon neither of these convictions can be regarded as being safe and satisfactory.

25. While we are indeed mindful of the fact it is only in exceptional circumstances that we would be justified in interfering with findings of fact made by a Judge at first instance we are bound to say that there were a number of features concerning this case which leave us with a sense of real discomfort.

26. The Court of Appeal in Sean Cooper (1969) 53 Cr. App. R. 82 considered the approach which should be adopted in such situation at p. 85:

"The important thing about this case is that all the material to which I have referred was put before the jury. No one criticises the summing-up, and, indeed, Mr. Frisby for the appellant has gone to some lengths to indicate that the summing-up was entirely fair and that everything which could possibly have been said in order to alert the jury to the difficulties of the case was clearly said by the presiding judge. It is, therefore, a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 - provisions which are now to be found in section 2 of the Criminal Appeal Act 1968 - it was almost unheard of for this Court to interfere in such a case.

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

27. In a similar manner we were of the view that these convictions must be quashed. The application was allowed. Treating it as the appeal we ordered that the convictions on counts 1 and 3 were to be quashed.