HKSAR v. PANG HO YIN

CACC 264/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2009

(ON APPEAL FROM DCCC NO. 200 OF 2009)

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REASONS  FOR  JUDGMENT

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Hon Stock VP (giving the Reasons of the Court):

Introduction

1.  On 14 July 2009, following a trial in the District Court before Chief District Judge Li, the applicant was convicted of conspiracy to traffic in a dangerous drug, contrary to ss 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap. 134, and section 159A of the Crimes Ordinance, Cap. 200.

2.  On 18 June 2010, we granted the applicant leave to appeal that conviction, treated the hearing of the application as the appeal, allowed the appeal and quashed the conviction.  We said that we would give reasons later and this we now do.

3.  There were three other charges to which he pleaded guilty, namely:

(1)   possession of 0.2 grammes of a crystalline solid containing 0.19 grammes of methamphetamine hydrochloride ( the drug known as “ ice”);

(2)   possession of an imitation firearm, contrary to s 20(1) of the Firearms and Ammunition Ordinance, Cap. 238; and

(3)   possession of an offensive weapon in a public place, contrary to s 33 (1) of the Public Order Ordinance, Cap. 245.

4.  The judge imposed the following sentences:

(1)   for the offence of trafficking (Charge 1), a term of five years’ imprisonment;

(2)   for the offence of possession of the small quantity of “ice” (Charge 2), eight months’ imprisonment;

(3)   for possession of an imitation firearm (Charge 3), a term of 10 months’ imprisonment;

(4)   for possession of the offensive weapon (Charge 4), a term of six months’ imprisonment.

5.  The sentences for Charges 3 and 4 were ordered to run concurrently with each other, but consecutively to the sentence imposed for Charge 2, making a total for those three offences of 18 months’ imprisonment, which was ordered to run consecutively to the five years imposed in relation to the trafficking offence, resulting in an overall total of 6½ years’ imprisonment.

6.  In relation to Charges 2, 3 and 4 there was an application for leave to appeal against sentence but upon our indication that we intended to allow the appeal against conviction in relation to the first charge, the application in relation to sentence was abandoned and we therefore dismissed it.

The facts

7.  It was common ground that at about 1 a.m. on 15 August 2008 the applicant was sitting in the driver’s seat of a vehicle in Hoi Fai Road, Mong Kok.  A second man was seated next to him and police officers went to the vehicle.  The applicant was asked to step out of the vehicle and was searched.  A plastic bag containing the small amount of “ice” was found upon him.

8.  The police officers then searched the vehicle and underneath the carpet by the driver’s seat they found an air pistol.  In the boot of the car, they discovered a golf club.

9.  Given the issue which is at the heart of the application relating to conviction, namely, whether at all material times the applicant was in a position to make an informed choice whether to exercise his right of silence, it is relevant to recount what was said by the police to him at the various stages upon and after his initial arrest.

10.  At about 12:45 a.m. on 15 August 2008, upon discovery of the packet of drugs in his jeans, the applicant was arrested for the offence of possession of dangerous drugs and was cautioned in the normal way, namely, that he was not obliged to say anything unless he wished to do so but that whatever he said might be taken down in writing and given in evidence.  He said that the “ice” was for his own consumption.

11.  Shortly thereafter he was told that the airgun had been found under the carpet on the floor of the driver’s compartment of the vehicle and in that regard he was again cautioned.  The applicant is alleged to have said that the airgun was to be used by him to scare enemies.  He was then arrested for the offence of possession of a firearm and cautioned yet again.  The applicant replied that the airgun had not been used by him and had been kept in the car all the time.

12.  He was then taken to the Mongkok Police Station where he was spoken to by a police officer at about 4 a.m., the events at the scene of his arrest were recounted to him, a written record made of them and he was given an opportunity to correct, alter or add anything he wished.  He signed the statement as one made of his own free will.

13.  Thereafter he was taken back to the vehicle and to his own premises for a search.

14.  Between 9 and 10 a.m. that morning he was interviewed in a videoed session.

15.  Prior to that session, he was shown a notice to persons in custody.  He said that he understood its contents and had no request to make.  He was asked if he knew his rights and he said he did know them.  He was asked if he needed a lawyer and he said that he did not.  He was reminded that drugs had been found in his possession, that he had been cautioned and that he had said that the “ice” was for his own consumption.  He was asked to explain what he had meant and he was then told that: “You are still under caution, that is, you’re not obliged to say anything but what you say will be recorded on video on this occasion and given in evidence in the future, understand?”  He said that he understood.  He said that the drugs were for his own possession and told the police from whom he had obtained them.  He was asked questions about his vehicle and from whom he had purchased it and for how much.

Trafficking

16.  Then he was reminded that he had also been arrested for possession of a handgun and that he had been cautioned and that he had said that the gun was his.  He was asked to explain where the gun came from and he told the interviewing officer that he had purchased it from a model shop in Yuen Long about three months previously, originally just for fun and he explained how it might be used.  He said that in the beginning he just kept it but that at a later stage, “because something happened to me…I kept it in the car.”  He asserted that a man called Siu Lun had attacked him with a glass bottle and attacked his car and cracked the front windscreen of it and had sent men to chase him.  The officer asked him what caused the dispute and the applicant said:

“Because earlier on I was engaging in dangerous drug redistribution, well, he bought some dangerous drugs from me … he said I was wasting his time, deliberately not handing over to him, well,… because of this, [he] asked a group of people to chase me away and said that I would no longer be allowed to do this sort of act in the Tin Shui Wai area”.

That had happened in about July 2008.

17.  It is clear that by that comment the applicant was making an admission of having trafficked in dangerous drugs and it is counsel’s contention that, if the questioning was to continue, he ought to have been cautioned anew since the interview was delving into new territory and into an offence of significantly greater gravity than those to which he had already admitted.

18.  No further caution was provided.  Instead the questioning continued:

“Q: You yourself… were engaged in selling dangerous drugs in the past, is that what you mean?

A: Er, usually…that’s right.”

19.  That admission was followed by an extensive series of questions: from whom the goods were sourced; where the purchases were made; the identity of the supplier on the Mainland; the quantity of drugs obtained; the date at which the applicant became a supplier; the price of goods obtained; the mechanism for its delivery and collection from the Mainland; the place at which the applicant sold the drugs; and the price of their sale by him.

20.  He was then asked questions about the firearm as well as about the golf club.  He said that he kept the golf club also for self-defence.

The trial

21.  At trial for the offence of trafficking, the applicant challenged the admissibility of his statements to the police.  The essence of his complaint was that he had told the police that the air pistol was for shooting birds but that they had said to him that that was an unacceptable explanation, that he would have to provide an explanation which was more “reasonable” and, further, he alleged that he was the subject of a threat of being charged with involvement in a robbery to which he had, in truth, not been a party.

22.  The learned judge rejected the applicant’s account in this regard and, in this application, there is no challenge to that finding.

23.  We have the advantage of the transcript of the applicant’s testimony in the voir dire.  It is clear from that transcript that in the course of examination of his client, counsel for the applicant embarked upon an attempt to make the point that in providing the police with his explanation for possession of the air pistol, and in answering the many questions which that explanation triggered, the applicant was unwittingly creating for himself a much more serious problem, namely an admission developed in some detail in answer to specific questions, of trafficking in dangerous drugs; unwitting in the sense that the applicant assumed that he was, by his explanation dealing with, and providing mitigation for the offences for which he had been cautioned, unaware that the detailed police questioning was leading to the prospect of a prosecution for trafficking in dangerous drugs, an offence for which he had not been arrested.

24.  Counsel’s attempt to pursue this line met with some difficulty:

(1)   Counsel for the applicant asked him whether either of the interviewing officers had cautioned him in respect of trafficking in dangerous drugs, to which the answer was ‘No’; and, as has already been made plain, it was accepted that no such caution was ever administered.  Counsel then went on:

“Q: Mr Pang, if any of the two [officers] administer caution …

Court: That’s hypothetical.

Counsel: Perhaps I – yes.

Court: I don’t think its proper.”

(2)   A short while later, counsel sought to return to the theme:

“Q: When you are mentioning that you were trafficking dangerous drugs, were you aware that you would be being charged against the trafficking in dangerous drugs?

Court: Of course he did not.

[Counsel]: May be not…

Court: How could he know during the interview that he would be charged or do you mean that did he know trafficking is an offence?

[Counsel]: Perhaps I put it in this way, your Honour…

Court: And that is of no meaning too because ignorance of the law is no defence.  Whether he know or whether he did not know is irrelevant, right, that he had missed certain facts in the video, right.

[Counsel]: I’m sorry, next question.”

(3)   After examination, cross-examination and re-examination was completed, the judge, as he was entitled, asked a few questions of his own, the thrust of which was to test the account given by the applicant that he was simply making up an explanation for the possession of the air pistol in order to please the police, in which context the judge probed what had prompted the applicant to alight upon a supposedly false story of trafficking in dangerous drugs, in response to which the applicant said:

“At first when I said it was trafficking in dangerous drugs, it never occurred to me that I would be prosecuted.”

25.  In the Reasons for Verdict, the judge dealt with this issue as follows:

“12.  Both [police officers] had not reminded the defendant about the caution when he mentioned about his trafficking activities.  However, at the early stage of the interview, PW2 [one of the officers] did caution the defendant albeit about his possession of “ice”.  In fact, the defendant indicated that he understood the meaning of caution.  He knew what he said might be given as evidence and he had a choice whether to answer a question.

13.   In examination-in-chief, the defendant agreed that he was cautioned at the beginning but it was only about possession of a dangerous drug.  During cross-examination, prosecuting counsel asked whether he still remember the caution when being questioned about the air pistol.  The defendant said he was only thinking about how to answer the question.  I find the defendant evasive.  On the other hand, he emphasised on the limited scope of the initial caution, on the other hand, he avoided answering if he could remember the caution.

14.   Taking all this evidence as a whole, I am sure that the defendant understood that he was under caution of the interview.  I am satisfied beyond reasonable [doubt] that the defendant answered questions voluntarily.  I admit the video as evidence.  I do not see any reason to exercise the discretion to exclude it.”

The ground of appeal

26.  On behalf of the applicant, Mr Wong submitted that the judge had erred in admitting into evidence that part of the video record of interview which followed the applicant’s initial mention of unlawful trafficking in dangerous drugs; evidence constituted by extensive questions and answers without the applicant having been cautioned in respect of the offence of unlawful trafficking in dangerous drugs.  The contention was that in the particular circumstances of this case where the nature of the investigation moved to new and serious ground, the applicant not appreciating the fresh risk he faced, he was not, in the absence of a fresh caution, in an informed position in which to determine whether to be silent.  Mr Wong relied particularly upon the judgment in R v Kirk [2000] 1 WLR 567, a case in which a defendant was questioned after his arrest for theft of a shopping bag from an elderly woman.  She died as a result of circumstances surrounding the theft; but at the time of the questioning he was not told by the police of her death or of the risk of his being charged for robbery or manslaughter.  He was tried for manslaughter and robbery and the Court of Appeal held that the trial judge had wrongly admitted admissions made in ignorance of the true nature of the investigation.  We refer in paragraph 32 below to the relevant parts of the judgment.

The principles

27.  Rule II of the Rules and Directions for the Questioning of Suspects and the Taking of Statements requires as much:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

So, too, Art. 5(2) of the Hong Kong Bill of Rights Ordinance requires that:

“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

That is a reflection of the terms of article 9 of the International Covenant on Civil and Political Rights, to which constitutional effect is given by article 39 of the Basic Law.

28.  It is conceded by the respondent that once the applicant, in the course of the videoed interview, commenced talking about past engagement in trafficking in dangerous drugs, he ought then to have been cautioned in respect of that suspected offence.

29.  However, the respondent contends, correctly, that breach of the Rules does not of itself dictate that in the exercise of discretion, the trial judge must exclude the evidence.  The question is always whether the right to a fair trial has been adversely affected.  The applicant was at all times aware of his right of silence; the series of questions posed by the police in relation to trafficking in dangerous drugs followed naturally from an answer volunteered by the applicant and, as was clear from the applicant’s evidence as a whole, it is argued, the applicant well knew that he had a choice whether or not to answer any further questions.

30.  It is as well to remind ourselves of the rationale behind the requirement to administer cautions to those suspected of criminal offences, lest by the passage of time and constant repetition it be considered a mantra of no significance. 

31.  The fundamental principles have been rehearsed in Secretary for Justice v Lam Tat Ming and Another (2000) 3 HKCFAR 168 where Li CJ said, at pp 178 –179, that in relation to proof of voluntariness of a confession – not in issue in this appeal – “the underlying rationale is based both on the need to ensure the reliability of confessions as well as the right of silence”, that right being “deeply rooted in the common law”, a right “to choose whether to speak or to remain silent [and in particular… a right [of a suspect] not to incriminate himself.”  That right, he pointed out was one that was protected by the Rules.  The judge, he said, had an overriding duty to ensure a fair trial for an accused according to law and for that purpose he had a discretion to exclude admissible evidence, including a voluntary confession:

“… The essential question is not whether the law enforcement agency has acted unfairly in a general sense. … The court’s function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.

The test of unfairness is not that of a game governed by a sportsman’s code of fair play … . Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused.”

32.  It would seem logical to suggest that the right to choose whether to speak or to remain silent is denuded of its force if the choice is based on a material misapprehension, created by the circumstances of his questioning, as to the nature of the peril in which, by such answers as he might advance, he may place himself.  There is support for that proposition in the judgment of the English Court of Appeal in R v Kirk [2000] 1 WLR 567 at p 572:

“However, as it seems to us, where the police, having made an arrest, propose to question a suspect or to question him further in relation to an offence which is more serious than the offence in respect of which the arrest was made, they must, before questioning or questioning further, either charge the suspect with the more serious offence … or at least ensure that he is aware of the true nature of the investigation. … They must do that so that he can give proper weight to that factor, namely the nature of the investigation which is being conducted, when deciding whether or not to exercise his right to obtain free legal advice … and in deciding how to respond to the questions which the police propose to ask of him.

It seems to us that the [Police and Criminal Evidence] Act of 1984 and the codes of practice which exist under it proceed upon the assumption that a suspect in custody will know why he is there and, when being interviewed, will know it least in general terms the level of offence in respect of which he is suspected and, if he does not know, and as a result does not seek legal advice and gives critical answers which he might not otherwise have given, the evidence, as it seems to us, in normal circumstances, ought to be excluded pursuant to section 78, because its admission will have a seriously adverse effect on the fairness of the proceedings: and that is the approach which we, for our part, would apply to this case.”

33.  Some play has been made in argument of the rather different facts of that case from the present.  In that case the police concealed from the suspect highly relevant material which, had it been revealed to the suspect, would have made him aware that he stood at risk of a much more serious charge than that of which he was aware.  There is that distinction, because in the present case no material factual information was concealed by the police and the initial statement about trafficking in dangerous drugs was one which the police could not have anticipated.

34.  Even so, the rationale is there and applies equally to the present case.

35.  It seems to us sufficiently clear that in the course of questioning by the police, both at the time of his arrest and in the interview which followed a few hours later, the applicant was acknowledging – it was difficult for him to do otherwise – that he was indeed in possession of the small quantity of drugs, the air pistol and the golf club; that he knew from the facts which had been uncovered by the police, from the terms of the arrest and the cautions which had been administered, that he faced the prospect of being charged with having committed criminal offences in respect of those three matters; those are the matters for which he had been expressly arrested and cautioned and in respect of which he was offering what he thought was mitigatory explanation.  It is clear too that in his testimony he was saying, or attempting to say, that it did not really occur to him, and he was not alerted to the fact, that in offering his explanation for possession of the airgun, and in answering a host of questions that followed that explanation, he was exposing himself to the real risk of prosecution for an offence of much greater gravity than the offence which he was explaining.

36.  We are of the opinion that in the particular circumstances we have described, the applicant’s assertion – implicit if not explicit in his testimony – that had he appreciated, after his initial mention of drug dealing, that his open explanation for possession of the airgun was no longer merely an explanation but had moved into the realm of prime interest for the police as evidence of a grave offence in itself, he might well have refused to provide the detail that followed, is an assertion that cannot readily be dismissed.  Up to that stage, the police had concentrated upon three offences for each of which he was expressly arrested and cautioned; they were interested in his explanation for one of them and he knew of that interest and addressed it, in the hope no doubt that it would somehow mitigate that offence.  That explanation, by way of suggested mitigation, led into new territory altogether and it was that new territory in which the police became interested to the exclusion of all else, territory into which the police invited the applicant deeper with each following question – of which there were many – yet without in any way alerting the applicant to the fact that he was now suspected of a further and much more serious offence for which he might very well face prosecution.  The failure in these circumstances to caution was not, therefore, a mere technical failure but was one whose consequences required some analysis.

37.  With respect to the learned judge, we did not think that the true issue was addressed, a fact no doubt attributable to the failure to draw his attention to Kirk.  It was correct of him to say that the applicant was aware of his right to silence and of his right to choose whether or not to speak.  That, as a generality, was the position but what, in our respectful opinion, he failed to address was the question whether the choice as exercised remained an informed choice once the focus of the investigation had changed.  So much is evident not only from the Reasons for Verdict but also from the court’s response in the course of the voir dire to counsel’s attempt to highlight this very issue.  If the applicant chose to speak in relation to three specific offences for which he was originally arrested, it does not follow that he would have chosen to speak had he appreciated that the gravamen of the police interest had shifted, with a view to possible prosecution, to a new matter altogether.  The explanation he was providing was in answer to prolonged questioning directed at a much more serious offence.

Conclusion

38.  It was in these circumstances that we were not satisfied that the judge had exercised his discretion upon a correct basis.

39.  Mr Lee for the respondent properly conceded that the single answer provided by the applicant in which he first revealed that he had dealt in dangerous drugs – the point at which a fresh caution ought, he conceded, to have been administered and after which extensive questioning followed – was not of itself sufficient to support a conviction for trafficking in dangerous drugs, since the information that was up to that point provided was vague.

40.  We did not in the circumstances think it appropriate to order a retrial.  The evidence on its face was such that we took the view that upon a proper exercise of a judge’s discretion, the most likely result was exclusion of the evidence of the detailed admissions to trafficking in dangerous drugs.

41.  For these reasons, the appeal was allowed.