HKSAR v. LI LAI HUNG

CACC371/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 2004

(ON APPEAL FROM DCCC 492 OF 2004)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  The applicant was convicted on 17 August 2004, after a trial before Judge Longley in the District Court, of an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. 

2.  The prosecution case against the applicant was that he had been searched by police officers in the early hours of the morning in a lane in Yaumatei and 22 grams of heroin and 196 tablets of midazolam were found in his clothing.  The applicant was refused leave to appeal against his conviction by a single judge on 6 April 2005.  He now seeks leave to renew his application out of time. 

3.  The unrepresented applicant’s home-made grounds of appeal as presented partly orally to us today, can be summarized as follows :

(1)	that the prosecution failed to prove that there was sufficient light at the scene of the applicant’s arrest for the arresting officers to have been able to observe the applicant’s actions and that the judge failed to accept the applicant’s photographic evidence to the contrary;
(2)	that the duty officer at the police station failed to enter the computer record of the particulars of the applicant’s arrest into the police computer personally but had another officer do so instead;
(3)	that the applicant’s complaint that the drugs were not his was not entered into that computer;
(4)	that the judge mistook the evidence that the applicant made no complaint to the duty officer about his ill-treatment; and
(5)	that the police notebook containing a signed post-recording to his admission at the scene for his arrest was wrongly admitted into evidence.

The applicant abandoned a number of earlier grounds of appeal alleging, inter alia, negligence on the part of his solicitors. 

4.  The applicant’s application to renew his appeal was made by notice dated of 5 September 2006, more than one year and four months out of time.  By an affirmed statement on that day the applicant’s sole reason for the delay in making his application was that :

“	… With advice from my family after the dismissal, I did not file the form to apply for leave to appeal.”

He says today additionally he was subsequently prompted to renew his application after reading in a newspaper of a successful appeal of some sort to the Court of Final Appeal.

5.  Before us he gave no better reasons for his failure to renew his significantly out-of-time application, and given the period of the delay we see no merit in his reasons, nor do we see any merit in his grounds of appeal. 

6.  He complains firstly that the trial judge refused to accept as evidence photographs of the lane in which he was arrested.  Those photographs had been taken by the solicitors firm representing him at the time of his trial.  The purpose of their production was to prove that the lighting conditions in the laneway at the time of the finding of the drugs were too dim for PW1 and PW2, the arresting officers, to have seen the applicant behaving suspiciously in the laneway as they said they had.  The applicant in this ground of appeal and in his submissions suggests that the photographs were not admitted into evidence.  On the material before us, the position is unclear.  The judge initially allowed the photographs to be provisionally admitted though they appeared to have been later fully admitted as exhibits and given an exhibit number.  But whatever the position in that regard, the judge was right not to accept them as probative evidence.  They were, after all, photographs of a night scene taken some four months after the arrest of the applicant and necessarily must have been most unreliable evidence of the state of lighting in the laneway four months earlier.  We might add that both PW1 and PW2 in evidence described the lighting conditions in the lane as adequate at the time of the arrest of the applicant and gave evidence of the nature and source of the lighting.  There can be no complaint about the judge’s acceptance of their evidence in that regard. 

7.  The applicant’s 2^nd and 3^rd grounds are completely without merit.  The computer record of the applicant’s arrest while not made by the duty officer was made under his supervision.  There was no reason not to admit that record.  Such a record is kept for police administrative purposes, it does not form any part of the investigative process.  It is not kept to record admissions or denials made by an arrested person.  There is however, as we understand it, a requirement that any complaint of the arrested person as to his being mistreated while in custody be recorded.  No such complaint was recorded in that computer. 

8.  The 4^th ground of appeal asserts the judge was mistaken as to the applicant not complaining to the duty officer about his mistreatment at the hands of PW1, the arresting officer.  The applicant alleged that he had been induced to sign PW1’s notebook entry of the applicant’s statement at the time of arrest by being mistreated and in particular by being promised bail.  In his reasons for verdict the judge commented :

“	It was not suggested to Sergeant 6970 [the duty officer] that the defendant had made any complaint to him at Yau Ma Tei Police Station.  Indeed the computer record (Exhibit P11) made on his instruction indicated that the defendant made no complaint.”

The reason for that comment was that at the conclusion of the applicant’s evidence, the judge had asked the applicant whether he had complained to anyone at the police station.  This exchange had occurred :

“	Q :	… you were promised that if you signed the document you would be released.  You were then taken back to the duty officer but you were not released.  Did you make any other complaint then?
	A :	I told the officer at Lai Chi Kok.  I requested to see the complaints officer.
	Q :	And did you see the complaints officer?
	A :	Yes.
	Q :	And did you make a formal complaint?
	A :	Yes.”

In re-examination by his solicitor, this exchange then occurred :

“	Q :	Did you make any complaint while you were in custody before being brought to court?
	A :	Yes, but my complaint was not entertained.
	COURT : Was that to the duty officer?
	A :	To the duty officer.  I mentioned to the duty officer and also to the other police officers who guarded the cell.”

9.  It was quite obvious this particular allegation of the applicant concerning the duty officer arose at the last moment of the applicant’s evidence on the special issue in response to questions by his solicitor in re-examination and had occurred after the duty officer had given his evidence.  The applicant’s solicitor did not seek to recall the duty officer.  That was a decision he was entitled to make given the late stage at which the allegation had surfaced and the existence of the duty officer’s computer record showing no complaint had been made.  It is quite clear that the judge had correctly understood this evidence and his comment was not mistaken. 

10.  The applicant’s final complaint is that the judge wrongly admitted into evidence the applicant’s admission contained in the arresting officer’s notebook.  He says in particular that the prosecution case on the special issue failed to properly account for the fact that the relatively short entry in the officer’s notebook took, from the times recorded in it, some 52 minutes to complete.  The applicant points also to the fact that he was interviewed by one officer only, with no witnesses.  He says these matters supported his case that he had been forced and induced to sign the entry in the notebook.  

11.  The applicant’s solicitor had cross-examined both PW1 and PW2 on both these matters.  The judge no doubt took them fully into account in arriving at his determination that the notebook entry was admissible in evidence and we do not find anything on the face of either of those two matters which would give rise to any concern as to the admission of the notebook. 

12.  For the above reasons, namely that no sufficient explanation has been provided by the applicant for his application to renew his appeal against conviction being out of time and the lack of merit of his grounds of appeal, we refuse the application. 

Loss of time Ruling

13.  This application was wholly without merit and it is renewed in the face of a refusal of leave by a single judge, and that judges reminder of the court’s power to order a loss of time. 

14.  Pursuant to the provisions of section 83W of the Criminal Procedure Ordinance, we direct that 3 months of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term to which he is subject as a result of the conviction under appeal.