HKSAR v. TOE ELI

CACC 120/2020

[2021] HKCA 1588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 120 OF 2020

(ON APPEAL FROM HCCC NO 373 OF 2019)

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J U D G M E N T

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Introduction

1.  The applicant was convicted after trial before Yau J (the judge) and a jury of two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. On 3 August 2020, he was sentenced to a total term of 27 years and 8 months’ imprisonment.  The applicant now applies for leave to appeal against his conviction. 

The charges

2.  Count 1 alleged that on 3 October 2018 at the lift lobby, 2^nd Floor, Tai Fong Building, Cosmpolitan Estates, No 55 Ivy Street, Tai Kok Tsui, Kowloon, the applicant unlawfully trafficked in 21.42 grammes of a solid, containing 8.78 grammes of cocaine and 2.96 grammes of a crystalline solid, containing 2.95 grammes of methamphetamine hydrochloride (commonly known as Ice). 

3.  Count 2 alleged that on the same day, inside Room 4, Flat 5, 2^nd Floor Tai Fong Building, Cosmopolitan Estates, No 55 Ivy Street, the applicant unlawfully trafficked in 4,171.01 grammes of a crystalline solid, containing 3,626.78 grammes of methamphetamine hydrochloride and 165 grammes of a solid, containing 65.8 grammes of cocaine. 

The prosecution case

4.  At about 5.00 pm on 3 October 2018, police officers intercepted the applicant in the lift lobby on the 2^nd floor of Tai Fong Building.  They found in his right front trouser pocket a transparent plastic bag, containing 20.6 grammes of a solid, containing 8.37 grammes of cocaine; a tissue packet, containing 2.96 grammes of a crystalline solid, containing 2.95 grammes of methamphetamine hydrochloride; a red plastic bag, containing 0.34 grammes of a solid, containing 0.18 gramme of cocaine and a white plastic bag, containing 0.23 gramme of cocaine.  Detective Police Constable 33592, (PW1), arrested the applicant and cautioned him in Cantonese, and the applicant said something in English which PW1 did not understand (Count 1).[1]    

5.  A set of keys were found on the applicant, which the police officers used to open the wooden door to Flat 5 on the same floor, as well as the iron gate and wooden door of Room 4 inside Flat 5.  Detective Police Constable 14369, (PW2), presented to the applicant a search warrant for Flat 5 and told him in simple English that they were going into Flat 5 and asked him to witness the search.[2]

6.  Inside Room 4, the police officers found a transparent plastic bag with two transparent plastic bags inside, containing a total of 1.99 kilograms of a crystalline solid, containing 1.51 kilograms of methamphetamine hydrochloride; a transparent plastic bag, containing 997 grammes of a crystalline solid, containing 970 grammes of methamphetamine hydrochloride; a transparent plastic bag, containing 940 grammes of a crystalline solid, containing 940 grammes of methamphetamine hydrochloride; and a solid transparent plastic bag, containing 165 grammes of a solid, containing 65.8 grammes of cocaine.[3]

7.  The police officers also found, hidden within a loudspeaker, a black plastic bag containing a transparent plastic bag, inside of which were seven conical shaped solids, consisting of a total of 209 grammes of a crystalline solid, containing 182 grammes of methamphetamine hydrochloride.[4]  PW1 then arrested and cautioned the applicant, who replied in English, but PW1 did not understand what he had said (Count 2).[5]  

8.  Also found inside Room 4 were materials which could be used for packaging drugs, namely, an electronic scale and some plastic spoons. 

9.  The applicant’s fingerprints were found on the inside of the back cover of the loudspeaker, while his DNA was found on exhibits P5, P6 and P8, which were the plastic bags containing the drugs found inside the black cabinet, and exhibits P9, P10 and P11, which were the plastic bags containing the drugs found in the loudspeaker.[6]

The post-recorded statement

10.  At 21:55 hours on 3 October 2018, PW1 made a post-recorded caution statement of the two arrests.  PW1 put questions to the applicant in Chinese, which he wrote in his notebook, while Woman Detective Senior Inspector Wong Po-ling, (PW3), wrote the English translation in the notebook and read it out to the applicant.  PW3 also wrote in the notebook what the applicant said in English and interpreted it to PW1, who then wrote it in Chinese in the notebook.  The final entry in the notebook is a declaration in English written by the applicant.[7]

11.  In the post-record it is stated that after the first arrest the applicant was cautioned by PW1, and the applicant said something in English which PW1 did not understand.[8]  It is also stated that the same thing happened after the second arrest.  The applicant then, in the presence of the English speaking officer, PW3, was asked to confirm what he had said earlier:

“At 5:21pm today I arrested you for possession of dangerous drugs and caution you. Please repeat and tell me again what you said under caution. … When you intercepted me, I said I was bringing these drugs back to Joy. After you police found the drugs in my room, I said these things belonged to Joy and I only kept these because I was in need of money.”[9]

The video-recorded interview

12.  At 00:58 hours on 4 October 2018, PW1 interviewed the applicant under caution, with PW3 acting as the interpreter. The applicant was asked what language he spoke and he said “I speak English”.[10]  He was then asked if he understood and agreed the contents of the notice to persons in custody, to which he replied that he understood it.[11]  He was asked if he needed a lawyer and he said no.[12] 

13.  The applicant said the drugs belonged to his friend called “Joy”, but he did not know the full name of Joy.[13]  He said he gave the keys to the apartment to Joy on 2 October 2018, and that Joy returned the keys to him 4 to 5 hours later at about 11:00 pm, in Tsim Sha Tsui.[14]  When the applicant returned home that night his head was “very free”[15] and he saw things on the table which he knew were illegal, and that he wanted to throw away[16] but did not really know what they were.[17]

The voir dire

14.  A voir dire was held to determine the admissibility of the post-recorded statement and the video-recorded interview. The defence claimed both were inadmissible as they were the result of force, threats and inducements.  It was also alleged that the police officers coached the applicant what to say.  It was argued the judge should have exercised his discretion to exclude the out-of-court statements on the grounds the applicant had not had an Igbo interpreter and PW3 acted as a Chinese/English translator on each occasion. 

15.  In his evidence-in-chief in the voir dire, the applicant confirmed he was from Burkina Faso, where the native language was French.  However, in the region he was from, the predominant language was Igbo.[18]  He was asked what his first language was and he said it was Igbo.  He was asked whether or not he studied English at school and he said he had not.  He was asked how he learnt his English, and he said “I learnt that just by in the society as I relate with people”.[19]  He said he was shown the notebook to read, but that he could not read English “very well”.[20]  

16.  The applicant described how he was beaten by the police officers and that he was told if he agreed to possession of the drugs they would not charge him with trafficking.[21]

17.  In cross-examination, he was asked how he learnt English, to which he said “when I graduated from the school.  It’s not graduate.  I didn’t finish school.  When I left school.  The people I meet outside in the society, that is how I learnt English.”[22]  He was asked about his ability to read English and he said “I can’t read very well.  It’s not that fluent.”[23]  The prosecutor then put her case on the special issue to the applicant:

“Q: Right. Now you wrote on the page 33, the ending paragraph, right, it started line 4 that ‘I have read the above statement’. Right. You understand what it means?

A: I didn’t understand what that meant then. They just brought the papers and asked—they just brought the paper and asked me to copy this.

Q: Yes. Are you saying that you just copied the word ‘I have read the above statement’ without knowing its meaning?

A: Yes, I wrote it but I didn’t understand the meaning.

Q: Okay. Now, later it says that ‘I have been told that I can correct, alter or add anything I wish.’ You understand what it means that, as you copied it down?

A: No, I don’t understand the meaning too.

Q: I see. The next sentence: ‘This statement is true’. You understand what it mean?

A: I don’t understand too.

Q: ‘And I have made it of my own free will’ You understand what it means?

A: No.

Q: I suggest to you that, in fact, the content of this statement is what you had told the police officer out of your own free will and you were sign – writing it down to confirm the same.

A: Do I speak Cantonese? How can it be what I told them?

…

Q: Right. And, in fact, because you are able to speak and understand English, so, for that reason, you did not ask for an Igbo interpreter.

A: This is not true.”[24]

The voir dire ruling

18.  The judge found that the video-recorded interview demonstrated the applicant had a good command of English and the answers he had given were clearly not the result of having been coached.  The judge found the applicant was not an honest or reliable witness.  The judge said:

“As testified to by the defendant himself, the official language of the country where he is from is French and most people there speak Igbo. He, however, as pointed out above and as demonstrated in the video-recorded-interview, has a good command of English. The way he learned the language as testified to by himself is totally unbelievable, if not mission impossible. The court does not accept his evidence.”[25]

The defence case

19.  The applicant gave evidence.  He testified that the drugs were not found on his person.[26]  He said on 3 October 2018, when he returned home and came out of the lift on the 2^nd floor, about three or more men grabbed hold of him and dragged him into the staircase.  He said he was a bit drunk at the time and the officers pushed his head towards the wall, and did not say they were police officers until they had handcuffed him.[27]  He said it was only PW3 who spoke English.  He said he was taken to his apartment where he was punched by PW1 and PW2 in the chest and abdomen.  Two other police officers assaulted him while PW3 hit his right temple.[28]  He otherwise repeated the evidence he gave in the voir dire.  He said when they were back at the police station, PW3 spoke to him suggesting that if he agreed to simple possession of drugs, they would not charge him with the other drugs found in Room 4.[29]  This was why he signed the post-recorded statement. 

20.  The applicant explained that he had allowed his friend, Joy, to keep things there, although he felt they were illegal.  At the time of his arrest, he had been on his way to throw the things away, which he had no knowledge were dangerous drugs.[30]  

The applicant’s submissions

21.  Mr Oliver Davies, who represented the applicant at trial and in this application, initially advanced three grounds of appeal in his Perfected Grounds of Appeal dated 22 December 2020.  He is now not pursuing Ground 3. 

22.  In Ground 1, Mr Davies argues the judge wrongly ruled admissible the post-recorded statement and video-recorded interview.  He submits the sole reason given by the judge for finding the applicant dishonest and unreliable was that he did not believe the applicant had learned English in the way he had testified.  He submits at no time during the voir dire was it suggested to the applicant that he did not learn English in the way in which he testified.  He submits it does not even appear the prosecution case was that the applicant was not telling the truth about the way he learnt English.  He argues the way in which the applicant learned English was irrelevant to the issue in the voir dire.  He also submits the judge took judicial notice of the possible ways of learning English – something on which he could not take judicial notice.  He argues the parties should have been informed the judge was going to take judicial notice of the matter. 

23.  In Ground 2, Mr Davies argues, as the post-recorded statement and the video-recorded interview were taken entirely in English without an Igbo translator, the judge should not have admitted them into evidence and instead should have excluded them on the grounds of unreliability. He submits it is clear from the transcript of the video-recorded interview that the applicant’s command of English is limited.  Mr Davies further argues the applicant was placed at a disadvantage by not being provided with an Igbo interpreter when interviewed by the police and thus, he was not afforded equal protection under the law in accordance with Articles 11(2)(a) and 22 of the Hong Kong Bill of Rights Ordinance, Cap 383, (BOR 11(2)(a) and BOR 22).[31]    

The respondent’s submissions

24.  Mr Andrew Li, for the respondent, notes that prosecuting counsel was seeking to establish through cross-examination that the applicant’s English was of a sufficient standard to understand what was being asked of him in the post-record and the video-recorded interview.  He submits how the applicant actually came to learn English was a matter of evidence from the applicant, and whether he should be believed or not.  He contends there was no breach of the rule in Browne v Dunn and he cites HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082.  He further contends, even though a piece of evidence may not be challenged by the prosecution, this does not necessarily mean the tribunal must accept the unchallenged evidence as true.  He submits the judge was entitled to disbelieve the applicant’s evidence that he learnt English by mingling with locals, because he testified the official language of Burkina Faso was French and the people from his region spoke Igbo.  He argues that how the applicant learnt English, as opposed to his standard of English, went to his credibility. 

25.  Mr Li submits the judge made his finding that the applicant had a good command of English after having had the benefit of viewing the video recorded interview.  He further submits this also led the judge to make a finding that the applicant had not been coached and this supported the evidence of the prosecution witnesses, but contradicted the applicant’s evidence. 

26.  Mr Li points out the applicant did not, in examination-in-chief in the voir dire, say that he did not understand what was written in the police notebook.  Instead, his evidence was that the police told him to sign it despite his objections.  However, it was in cross-examination, he said for the first time, that he did not understand the declaration at the end of the post-record.  He argues once the judge found that the applicant had a good command of English, there was no basis upon which to exclude the out-of-court statements.

27.  As for the application of BOR11(2)(a) and BOR 22, Mr Li submits the applicant was asked at the commencement of the video-recorded interview what language he spoke, to which he replied “English”. He was made aware of his right to request an interpreter prior to the interview, yet made no such request.  The judge found the applicant was proficient in English and hence, there was no violation of BOR 11(2)(a) or BOR 22. 

Discussion

28.  The two grounds of appeal centre on the issue of the applicant’s proficiency in English and whether the judge erred in ruling admissible the applicant’s out-of-court statements.  Mr Davies takes no issue with the way the trial was conducted and specifically focuses his complaint on the judge’s ruling on admissibility.

29.  From the written objections to the admissibility of the out-of-court statements, it is complained that they were not made voluntarily because they were obtained as a result of force, threats and inducements, and that the applicant was coached by the police officers as to what to say.[32] No complaint was expressly advanced in the written objections, as it is now argued in this application, that the interviews were improperly conducted in English because the applicant’s proficiency in English was insufficient or inadequate.  The closest they come to the complaint that is now being made is that the police failed to arrange an Igbo interpreter for the applicant and PW3 improperly acted as the Chinese/English translator for the out-of-court statements.

30.  The first ground complains the judge in his ruling wrongly relied on matters to find that the applicant was not an honest and reliable witness. 

31.  Mr Davies submits the sole reason given by the judge for finding the applicant was not an honest and reliable witness was the applicant’s evidence as to how he came to learn English.  He submits there was no basis for the judge to make such a finding on his evidence.

32.  The judge in his ruling, having reviewed the evidence, found that the video-recorded interview demonstrated clearly that the applicant had “a good command of English”.  He noted the answers given by the applicant in the video-recorded interview were clearly not answers decided by police officers and demonstrated that he had not been coached as to what to say in the interview.  He found that this supported the evidence of the police officers and contradicted the evidence of the applicant.

33.  The judge said that after considering the evidence of the prosecution witnesses and the evidence in the case as a whole, he found the prosecution witnesses to be honest and reliable witnesses and accepted their evidence.  Whereas, he found the applicant was not an honest and reliable witness.  He went on to describe the applicant’s evidence that the official language of his home country was French and most people there spoke Igbo, and having referred back to his finding that the applicant had a good command of English, rejected his evidence as to how he learned English. 

34.  I am not satisfied that the judge erred in the approach that he took or in the finding that he made based on the evidence that was before him. 

35.  The judge had the benefit of listening to the video-recorded interview and assessing the applicant’s proficiency in English. It would seem the judge’s finding that the applicant had a good command of English, undermined the applicant’s evidence that his command of the English language was poor and he was disadvantaged by being interviewed by the police officers in English. 

36.  The argument that there was a breach of the rule in Browne v Dunn is not reasonably arguable.  I do not have the evidence of the police officers in the voir dire and can only assess this issue on the basis of the applicant’s testimony in the voir dire, which is in the Appeal Bundle.  In examination-in-chief, the applicant confirmed his first language was Igbo and that he did not study English at school.  It was noted he could speak some English, which he said he learnt by relating to people in society.[33]  In cross-examination, prosecuting counsel questioned the applicant about his standard of English and how he had come to learn English.  Through the questions she was probing his evidence to show that he had a good command of the English language.  He again said that he learnt English from meeting people and this was while he was still in his hometown, where they spoke Igbo.  He confirmed he had been in Hong Kong since 2016 and he mostly associated with Africans, with whom he would communicate in Igbo.  He claimed that he could not read English very well and that “it’s not that fluent”.  He even acknowledged that he sometimes listened to English programmes.[34] Whilst it was not made a written ground of objection against the admissibility of the out-of-court statements, it appears that an issue was nonetheless made by the defence about the applicant’s proficiency in English, on which he was cross-examined by prosecuting counsel.  This was confirmed by Mr Davies at the leave hearing, who reiterated the position at trial was that the applicant’s English was insufficient and it was therefore not fair in the circumstances to have interviewed the applicant without an Igbo interpreter.

37.  Of the judge’s rejection of the applicant’s evidence on how he learned English, it was open to him, as the tribunal of fact in deciding the admissibility of the out-of-court statements, to assess the evidence of a witness and decide what evidence he rejected or accepted as the case may be.

38.  The argument that the judge in reaching this finding took judicial notice of possible ways of learning English is also not reasonably arguable.  This was clearly not a case where the judge was taking judicial notice of a matter.  The judge in rejecting the applicant’s evidence as to how he learned English, was set against his finding that the applicant had a good command of English and it was not something he had picked up by being in the society of people, particularly in a French country where most people spoke Igbo.

39.  The second ground of appeal complains the judge failed to consider the reliability of the applicant’s out-of-court statements and wrongly admitted them into evidence.  Mr Davies argues the applicant is a native Igbo speaker and the fact that the out-of-court statements were taken in English without an Igbo translation rendered them unreliable. 

40.  To resolve this ground the video-recorded interview is apposite.  At the commencement of the interview, the applicant is asked: “What language do you speak?”,  and he responded: “I speak English.”  He was informed in English that a video-recorded interview was to be conducted and whether he was willing to conduct the interview.  He answered: “Yes.”  He was reminded he had been issued with a notice to person in custody, which he acknowledged was the case and he understood the contents of it.  He was asked numerous questions in respect of the alleged offence and clearly demonstrated he understood the questions by the answers that he gave. 

41.  Mr Davies claims there are instances in some of the answers that the applicant gave, which indicated he misunderstood the question or was unable to express himself clearly.  They do not seem to be very significant.  The applicant testified at trial and clarified some of the answers he gave in his video-recorded interview which the judge summarised in his summing-up to the jury. 

42.  It is generally complained by Mr Davies that the applicant was disadvantaged by not being provided with an Igbo interpreter when he was interviewed by the police officers and therefore, he was not afforded equal protection under the law in accordance with BOR 11(2)(a) and BOR 22.  He does not articulate how these articles are engaged and there is nothing to suggest the applicant’s proficiency in English was such that it resulted in unfairness to him.  The applicant has not been able to demonstrate that because the out-of-court statements were conducted in English, this impeded his understanding of the case against him and affected the conduct of his defence, resulting in an unfair trial.  See HKSAR v Gutierrez [2020] 2 HKLRD 720.

43.  I do not consider the various facets of this ground of appeal to be reasonably arguable.

Conclusion

44.  I do not find any merit in the grounds of appeal and accordingly the application for leave to appeal against conviction is refused.

45.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1] Appeal Bundle (AB), 12 P-R. 

[2] AB, 53 P-U

[3] AB, 13 A-E

[4] AB, 13 E-H. 

[5] AB, 31 S-U.

[6] AB, 14 F-G and 41 C-J.

[7] AB, 49 H-S. 

[8] AB, 92. 

[9] AB, 96-97. 

[10] AB, 112, counters 24-25. 

[11] AB, 113, counters 36-37. 

[12] AB, 114, counter 41. 

[13] AB, 127, counter 184. 

[14] AB, 136, counter 270; 137, counters 283-284; 138, counters 287-289. 

[15] AB, 130, counter 219. 

[16] AB, 124, counter 155. 

[17] AB, 126, counter 169. 

[18] AB, 242 N-P. 

[19] AB, 242 Q-S. 

[20] AB, 249 L-M. 

[21] AB, 245-246. 

[22] AB, 253 R-S. 

[23] AB, 254 C. 

[24] AB, 262 P-263 H. 

[25] AB, 264 P-S. 

[26] AB, 32 A-C. 

[27] AB, 74 I-N.

[28] AB, 75 A-E. 

[29] AB, 248 P-R. 

[30] AB, 34 A-F. 

[31] BOR 11(2)(a) provides that in the determination of any criminal charge, everyone shall be entitled to the minimum guarantee, in full equity "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.  BOR 22 provides equality before and equal protection of the law. 

[32] The applicant’s written grounds of objection were included in the Appeal Bundle at the leave hearing.  AB, 266-269.

[33] AB, 242L-S.  

[34] AB, 253H-254I.