HKSAR v. CHAN TZE CHUN

HCMA 1159/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1159/2000

(On appeal from of SPCC 2243/2000)

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JUDGMENT

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Introduction

1. On 14th August 2000 the Appellant was convicted after trial of one charge of possession of dangerous drug, contrary to sections 8(1)(a) & (2) Dangerous Drugs Ordinance, Cap. 134. He was sentenced to perform work under a Community Service Order for 200 hours with special conditions. He appealed against conviction.

2. When I heard the appeal on 25th May 2000, I allowed the appeal, quashed the conviction and set aside the sentence. I now give reasons for my judgment.

Brief facts

3. The prosecution case was relatively simple. On 12th January 2000, PC33554 ("PW1") was patrolling Bakers Street near Gillies Avenue South with his colleague PC52006 when he saw the Appellant kept on looking back while walking. The Appellant was stopped subsequently and a search revealed that the Appellant had two packets of dangerous drug in his trousers pocket. After the Appellant was arrested and cautioned he said "Ah Sir, these white powder are for my own consumption." Although a Record of Interview was taken from the appellant, the prosecution chose not to adduce that into evidence.

4. The Appellant's case was that after he finished having tea with his girlfriend ("DW2") and parted with her, he was grabbed by PW1 when he was about to catch a minibus to go to Mongkok for work. PW1 pushed him against the wall and asked if he knew anything about someone called "Ah Chuen". Upon the Appellant saying that he did not know such person PW1 assaulted him. Suddenly a man asked him to hold something. He complied and he was eventually arrested. He was not cautioned and he did not say anything to the effect that he had the dangerous drug for his own consumption. As to the Record of Interview, the contents did not originated from him. He merely signed as told. The case of the defence was that PW1 had framed him up.

Grounds of appeal

5. Mr. Eric Cheung on behalf of the Appellant submitted 5 grounds of appeal. For the purpose of the present appeal, I need only refer to the failure of the learned magistrate to properly evaluate the Record of Interview as she failed to understand the purpose for which such Record was adduced into evidence.

6. The prosecution made it clear that no reliance was placed on the "admissions" by the Appellant in the Record of Interview. There was no question of any voir dire. During the trial, the Appellant's legal representative, Mr. Pierce, indicated to the learned magistrate that he wanted the Record of Interview to be placed before her. Bearing in mind the respective case of the prosecution and the defendant, it is clear what the defence wanted to do was for the contents of the Record of Interview to be placed before the learned magistrate, not for the purpose of proving that the contents were true, but for the purpose of asking the learned magistrate to hold that the assertions therein were false so as to draw the inference that the police did frame the Appellant up. (See Wong Wai Man v HKSAR [2000] 3HKLRD 313, citing with approval a passage by Lord Hodson of the Privy Council in Mawaz Khan v R [1967] AC 454, an appeal from Hong Kong.)

7. The contents of the Record of Interview referred, inter alia, to the Appellant having bought the dangerous drug from a male called "Ah Cheung" at about 7 p.m. (on the date of arrest) at the Universal Funeral Parlour; that he consumed dangerous drug by means of "Da Lo Ko" (i.e. to put the dangerous drug in the cigarette for consumption); and that he had consumed dangerous drug for about 2 months. The Appellant in his evidence testified that he was having tea with DW2 at a restaurant at about 7 p.m. that evening and he did not leave the restaurant until 8 p.m. He had not gone to the said funeral parlour. He had never purchased dangerous drug on that day or any other day. DW2's evidence confirmed the Appellant's version. She also said that to her knowledge the applicant had never taken any dangerous drug.

8. As there were conflicting evidence before the learned magistrate as to what had taken place, the defence invited the learned magistrate to make a finding that the contents of the Record of Interview were untrue in view of what the Appellant and his girlfriend had said so as to draw an inference that the police had fabricated the contents of the Record of Interview, and to further infer that the police had fabricated the whole matter against the Appellant.

9. Judging from the exchange between the learned magistrate and Mr. Pierce, it is clear that the learned magistrate did not understand or appreciate that the Record of Interview could be admitted other than for the purpose of establishing the truth of the assertions therein. Mr. Pierce had also confused the learned magistrate by saying that she needed to rule the Record of Interview inadmissible first (page 44 of the Appeal Bundle):

"COURT: First of all, I want to clarify. The prosecutor will not produce the cautioned statement, is that right?

MR PIERCE: That's correct.

MISS TONG: Yes.

COURT: But you want the cautioned statement to be produced?

MR PIERCE: At the moment depending upon how the evidence goes, I would say, yes, but it may well change based upon the evidence the officer gives.

COURT: Is the cautioned statement exculpatory?

MR. PIERCE: No, it is not. It's allegedly a full and frank admission of the offences (sic).

COURT: You still want me to have a look?

MR PIERCE: Yes, I do, indeed, yes.

COURT: You want me to have a look at the cautioned statement, even though it's against your client?

MR PIERCE: It is, on the face of it, completely against my client but I would be inviting your Worship, if you Worship does look at it (a) to find that it's not admissible, for reasons of oppression which I will go into, and ...

COURT: So the prosecutor does not produce it; you want me to have a look at it, then rule it to be inadmissible?

MR PIERCE: I would then ask you to rule that it's inadmissible and, subsequently at the second stage of the trial, I would also be asking you to find that the contents thereof are not true. Two issues.

COURT: Counsel, are you wasting my time?

MR PIERCE: Certainly.....

COURT: You want me to have a look at the cautioned statement which the prosecutor will not produce and ask me to rule it is inadmissible?

MR PIERCE: well, there's no issue of admissibility or inadmissibility at this stage. It will depend, your Worship, on what Police W1 says in his evidence. Depending on what he says, and I can't say what he's going to say at the moment, I would be wishing to make reference to certain aspects, certain parts...

COURT: I do not really understand.

MR PIERCE: ......of the cautioned statement

COURT: You want me to have a look at the cautioned statement which content is against your lay client?

MR PIERCE: That's correct. If..."

10. What should have taken place, if the prosecution refused the defence application to have the Record of Interview adduced into evidence, was for the learned magistrate to decide if the Record of Interview could be justifiably admitted for the purpose of showing that the assertions therein were untrue. Not for her to rule the Record of Interview inadmissible as suggested by Mr. Pierce. In any event, the learned magistrate was not required to make any ruling on this point as the prosecution raised no objection and the Record of Interview was produced by consent while the Appellant was giving evidence (see page 85 of the transcript).

11. The learned magistrate, in dealing with the Record of Interview, said this (at page 100 of the Appeal Bundle):

" A set of record of interview ..... have been produced under consent between prosecution and defence. It has never been the intention of the prosecution to produce this set of record of interview in which the defendant had made certain admissions. Rather, it is the defence intention to produce it as evidence of this case. As prosecution has never intended to produce it and I am of the opinion that the contents of this set of record of interview will be adverse to the defendant, I hereby attach no weight to the content and answer of it, despite the fact that [the record of interview] have been produced under consent between prosecution and defendant." (Emphasis applied)

The learned magistrate failed to appreciate the intended use of the Record of Interview, and thereby did not address her mind on its relevance. The learned magistrate was not being ask to put any weight on the Record of Interview, the prosecution never relied on it anyway. She had to decide if the contents were indeed untrue so as to determine whether PW1 fabricated the whole incident. She had failed to do so and the conviction is therefore unsafe and unsatisfactory. I would add that Mr. Paul Madigan, on behalf of the Respondent, had fairly conceded that the conviction could not be upheld when this issue was being addressed to in court.