HKSAR v. LAM CHUN MAN

[English Translation – 英譯本]

CACC 287/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO 287 OF 2016

(ON APPEAL FROM HCCC 286/2015)

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REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

1.  This is an appeal from the Court of First Instance of the High Court.  The applicant was convicted after trial of one count of “trafficking in a dangerous drug” involving ketamine in the net weight of 3.85 kg.  He was sentenced to 20 years’ imprisonment by the trial judge (M Poon J).  The applicant applied for leave to appeal against conviction.  Having heard his appeal, we granted leave and allowed the appeal.  These are our reasons.

Prosecution case

2.  The prosecution case is very simple.

3.  At 7:47 pm on 20 March 2015, DPC 51161 (“PW1”[1]) intercepted the applicant for enquiry on Platform No. 2 of Shau Kei Wan MTR Station because he found him suspicious.

4.  Two minutes afterwards, DPC 7476 (“PW2”) came to the scene on instruction, searched the applicant and seized from the white plastic bag in the applicant’s hand the five packets of dangerous drug in question.  Having been arrested and cautioned by PW2, the applicant said, “Understand.  These five packets of K Chai are to be distributed to customers by me for Ah Fai, receiving $500 for each round.”

5.  At 7:55 pm on the same day, DIP Fung Chi Tat (“PW4”), leading DPC 822 (“PW3”) and DPC 89 (“PW5”), arrived at the said MTR platform.  Afterwards, he together with PW2 took the applicant back to the ground level and conveyed him back to Chai Wan Police Station by a 7-seater motor vehicle.  At that time, there was also a DSPC called “Chia Wah” on board.

6.  At Chai Wan Police Station, the police officers concerned[2] made a report of the case and showed the arrested person and the exhibits to the duty officer, and apart from that, PW2 also issued a “Notice for Person in Custody” to the applicant and conducted a further body search on him.

7.  After completing the above procedures, the applicant was taken to the Police Headquarters.  In Room 1743, PW2 who was alone with the applicant made a post-record of the verbal confession in a notebook, on which the applicant signed to confirm.  In the course of it, PW2 did not ask the applicant any further question.

8.  In the present case, initially, there was also the record of a video interview conducted under caution, but the prosecution made no attempt at all to produce it in court for the reason of Chia Wah (see below).

Defence case

9.  The appellant said that he did not know what was inside the plastic bag was dangerous drug and claimed that both the verbal confession and the post-record in question were fabricated by the police or had just been obtained by the police by improper means.  The allegations are roughly as follows.

10.  At the material time, the applicant was aged 17, having a clear record, and ran errands for the boss of an online shopping platform.  On that day, sometime between 5 pm and shortly after 6 pm, he received a customer’s call and realized that there was something wrong with the goods ordered by the customer.  Since the customer was pressed for time, and the applicant could not get in touch with the boss, the applicant acceded to the customer’s request and went to Shau Kei Wan MTR Station to get back the commodity for replacement.

11.  At the MTR exit, the customer gave a blue plastic bag to the applicant. The customer said that the plastic bag might break, told the applicant to buy a plastic bag to hold it and then left.  The applicant followed the customer’s suggestion, bought something to drink from a convenience store and after that put the original plastic bag with its contents into the white plastic bag which had just been bought from the store.  The applicant all along thought that it was health product inside the plastic bag.

12.  Having not been able to get in touch with the boss all along, the applicant decided to go home first but was intercepted by the police right on the platform for enquiry.  When the police constable asked him what was inside the plastic bag, he even said, “Health stuff.”  On hearing that, the police constable told him to go to police station before saying anything further.  Subsequently, other police officers were summoned, and he was handcuffed and taken away.  In the course of it, the police constable did not declare any arrest or administer any caution on him.  And he never made the verbal confession as alleged by the prosecution.

13.  On board the 7-seater motor vehicle, on the way to Chai Wan Police Station, the applicant was assaulted and threatened by Chia Wah who slapped his face and pulled his hair.  Chia Wah alleged there was obviously dangerous drug inside the plastic bag and demanded the co-operation of the applicant, and the other person said, “Here is just very little.  Can go after serving one to two years.”

14.  After arriving at Chai Wan Police Station, the applicant was taken to a room where PW2 took out and gave to Chia Wah a notebook which already contained the written contents.  Chia Wah, after reading it, requested the applicant to write a declaration to confirm the content to be true.  The applicant refused.  Chia Wah pulled his hair and gave him a punch.  Chia Wah also threatened the applicant “not to play any game”.  Finally, the applicant unwillingly wrote down the declaration and signed the post-record concerned.

The procedures and the result of the trial

15.  The applicant was the only defence witness, and he testified in the voir dire.  The trial judge ruled the verbal confession and the notebook post-record in question admissible (hereinafter collectively referred to as “the cautioned statements”).  In the trial proper, the applicant repeated his allegations against the police and his explanation about the whole incident (ie handling the replacement of goods for an online customer).  Finally, the applicant was found guilty of the charge of “trafficking in a dangerous drug” by the jury in a majority of 5 to 2.

Essential grounds of appeal

16.  The applicant has advanced eight grounds of appeal in total.

17.  Among these grounds, Ground (1) contends that although Chia Wah was a witness named “on the back of the indictment”[3], and the applicant had specific allegations against Chia Wah in relation to the admissibility of the cautioned statements, the prosecution refused to call Chia Wah to testify, a matter which rendered the trial unfair.

18.  It is contended under Ground (2) that the trial judge has erred in ruling the cautioned statements admissible notwithstanding that the prosecution had refused to call Chia Wah.

How the issue arose

19.  As stated above, the present case happened in the evening of 20 March 2015, and Chia Wah was actually named as PW3 on the back of the indictment dated 24 July 2015.

20.  However, according to para 7 of the admitted facts in the case[4], on 18 February 2016, Chia Wah was convicted on his own guilty plea of a charge of “possession of a dangerous drug” and sentenced to two months’ imprisonment which was suspended for two years, and he was “interdicted” at the time of the trial of the present case.

21.  According to the further information provided to this court by the respondent, Chia Wah was involved in that case for 0.37 g of cocaine.  He put forward the ground that “the dangerous drug was given by an informer” in mitigation of sentence.  Finally, because of his clear record and previous good working record, after giving him a general one-third discount for his guilty plea, the magistrate allowed his sentence of imprisonment to be suspended.

22.  In view of the above development, during the second pre-trial review of the present case (on 26 July 2016), the prosecution informed the defence and the court that they were not calling Chia Wah and would give up the post-record in the notebook and the subsequent video interview under caution even if that meant only relying on the verbal confession which did not involve Chia Wah.  The following is the conversation among the counsel for both sides and the court in the early stage of the pre-trial review (parts underlined to be noted)[5]：

“MR CHEUNG[6] : Yes, and the cautioned statements will be disputed as well. I know that the prosecution are (not[7]) prepared to produce the video interview record. If that’s the case, there will be no dispute in this regard. However, there are still the verbal confession at the scene, the verbal confession, and also the post-record later made at the police station. These two will be disputed.

COURT : Do you confirm that the video interview will not be produced?

MR CHUI[8] : Yes, I do, Your Ladyship, since the third -- PW3, who is PC, this 33644 has already left the police force, we, the prosecution will not call this witness, and therefore the video interview will not be relied on, the prosecution, however, the verbal confession and the post-record in the notebook will be relied on, the prosecution. Therefore, as a result …

..........

MR CHUI : Now, the prosecution are going to call only three witnesses, who are PW1, the arresting officer who administered the caution.

COURT : Yes.

MR CHUI : PW2, DSgt 51161; and PW4 who’s the Exhibit Officer, DSgt 822, and that’s it.

COURT : Why do we need the Exhibit Officer, Mr Cheung?

..........

MR CHEUNG : But because of the -- at the police station, the subsequent post-record, the defence complains that something had happened on board the police vehicle.

COURT : Hang on.

MR CHEUNG : Yes.

COURT : ... Therefore PW4, all to be called are related to matters in this regard only, …

MR CHEUNG : Right, that’s correct.

COURT : ... but not about whether or not dangerous drug was found upon search?

MR CHEUNG : That’s right, not about that, right, only against the verbal confession and the subsequent post-record made at the police station, because at that time PW4 was on board the vehicle.

COURT : Yes.

MR CHEUNG : And also, the prosecution also request -- I do apologize, the defence now intend to request the prosecution to tender PW3, the prosecution witness for my cross-examination because also on board the vehicle, in relation to the dispute about the subsequent post-record, there are some allegations against this PW3. I know that the prosecution do not intend to call PW3. But in view of two reasons: first, he has been named on the back of the indictment as a witness, and second, there are allegations against him. The defence hence request the prosecution to tender him -- for cross-examination by the defence.

COURT : Yes.

MR CHEUNG : Yes.

COURT : What do you say, Mr Chui?

MR CHUI : Yes, Your Ladyship, if the prosecution finally see that the defence’s grounds of objection do, if, actually involve some allegations against PW3 DPC 33644 on the voluntariness in respect of the post-record, the prosecution will consider not to rely on the post-record in the notebook as evidence.

COURT : Hang on. First, who made this post-record?

MR CHUI : PW1, the arresting officer who administered the caution.

COURT : Exactly, now he says that he only wants to call the third prosecution witness, he says that the third …

MR CHUI : There are allegations, complaints about PW3…

COURT : Right, right, right.

MR CHUI : … while on board the vehicle on the way back to police station, against this PW3.

..........

COURT : Hang on, because you are not able to locate this witness so as to arrange him to comes to testify,…

MR CHUI : That’s right.

COURT : … that’s what you mean?

MR CHUI : No, I may not mind telling the court that this witness will -- he himself was involved in another criminal case and has been convicted.

..........

COURT : What you mean is, let me see if I understand what you mean, you are trying to say that in any event, PW3, you will not call him?

MR CHUI : Correct.

COURT : Yes. However, if in their grounds of objection, there is anything involving any complaint against this police officer, which means that on the way, the way back to the police station, this police officer (PW3) acted in any way improper, which might have caused him to sign on the post-record of the cautioned statement subsequently, you will consider not to produce the post-record, is that right?

MR CHUI : Correct.

COURT : That means, in that case, you may only rely on a verbal confession?

MR CHUI : Verbal confession, right.”

23.  It can be seen from the above conversation that the prosecution’s initial intention was not to rely on any cautioned statement other than the verbal confession, thereby relieving themselves of the requirement of calling Chia Wah.  However, in the defence’s view, it was not as simple as the prosecution suggested because the truthfulness of the verbal confession did have bearing on PW2’s integrity, and whether PW2 was honest and law-abiding was in turn relevant to whether he had witnessed and acknowledged the alleged subsequent improper conduct of Chia Wah and other police officers on board the police vehicle. Therefore, after all, Chia Wah’s testimony was necessary.  The defence counsel’s subsequent representation could tell that it was plainly the defence position[9]:

“MR CHEUNG : Your Ladyship, I understand, but perhaps I -- what I am now considering is that if the prosecution rely on the verbal confession made at the material time at the scene, it is still necessary to call this PW3 because -- that is to say, the defence’s objection is that no verbal confession has been said, none has been made. But on the way back to the police station, namely on the way from Shau Kei Wan to Chai Wan Police Station, on board the vehicle, …

COURT : Hang on.

MR CHEUNG : ... there were PW1, PW3, PW4 and possibly PW2, while PW1 has conducted himself improperly, and PW3 has also conducted himself improperly, on board the police vehicle, and this -- I think, also has bearing on whether the verbal confession has been made, and this …

COURT : Wait, wait, wait. You say that the verbal confession was never made?

..........

COURT : Hang on. What you say is, at the time when the accused allegedly made the verbal confession at the scene, …

MR CHEUNG : Right.

COURT : … in fact, the accused did not make any verbal confession, and at that time at the scene, or at or before he allegedly confessed verbally, there was not any improper conduct on the part of the police?

MR CHEUNG : There was none.

COURT : The improper conduct came only after the arrest, on the way of getting onto the police vehicle, it was not until then did PW1 and PW3 act improperly, resulted in the subsequent untruthful post-record?

MR CHEUNG : Yes, that’s right.

COURT : Well, under such circumstances …

MR CHUI : If that’s the case, there would be no influence on the facts of the case, the first, the second, about voluntariness.

COURT : I understand, but as to your part, I just cannot deal with it piecemeal but have to do the whole thing. That is to say, you cannot say that I-- I think that if that’s what the defence say, the defence say that even if you do not produce the post-record, they will require you to produce it and have a voir dire, going through the entire voir dire first. You cannot ask for piecemeal, I do not -- because of the absence of PW3, [we] give up the whole post-record. The reason is, what is a post-record[?] A post-record is your recording of what allegedly happened at the scene which they say never even happened.  But after that point in time, between two periods, there were some improper conduct involving PW3.  You cannot simply say, ‘Well, let me have it in piecemeal.’ The prosecution, while PW3 was also involved, then [we] give up the latter part and only have the verbal confession.”

24.  However, the above discussion was only followed by a mere variation of the prosecution’s initial approach.  The prosecution indicated that the verbal confession and the post-record in the notebook would be produced together, just as what the trial judge understood.  As to whether Chia Wah would be called, the trial judge seemed to opine that the ultimate decision was in the hands of the prosecution, or the prosecution just could do nothing to arrange him to come to court: “this person cannot be made available means he cannot be made available” and “just cannot do anything even if he is so required”[10]. Further, the trial judge and the counsel on fiat both took the view that whatever Chia Wah had or had not done in the present case and the fact that Chia Wah was forced to leave the police force because of having committed crime himself, the court and the jury could still reach a proper conclusion through cross-examination by the defence of other prosecution witnesses[11].

25.  It was under such circumstances that the trial judge ordered the trial to commence on 31 August 2016 (ie about five weeks afterwards) as scheduled.

Relevant law

26.  As the applicant’s counsel had indicated at the hearing, the law regarding calling witnesses by the prosecution is in fact really clear and specific.

27.  On this issue, one of the most classic precedents in modern times is R v Oliva (1965) 49 Cr App R 298.  In that case, after going through the precedents in the last hundred odd years, the English Court of Criminal Appeal indicated (see the part between the end of p 309 and top of p 310 of the judgment):

“ ….. the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination.

The prosecution do not, of course, put forward every witness as a witness of truth but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved.  Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence.  If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a witness, and if they refuse, there is the ultimate sanction in the judge himself calling that witness.”

28.  A more recent case R v Balmforth [1992] Crim LR 825 of the English Court of Appeal also shows (see the decision in the headnote):

“ Held, allowing the appeal, the authorities showed that the prosecution must have available the witnesses on whose evidence the committal was founded but it had a discretion in determining whether witnesses were capable of belief; if they were so capable the prosecution was under a duty to call them and either examine them or tender them for cross-examination.”

29.  Finally, in Blackstone’s Criminal Practice 2017, there are also clear and comprehensive discussions on this issue, which also go further and explain the reasons behind the relevant law and various possible scenarios to suggest some pragmatic approaches (see paragraphs D16.17 to D16.24). 

30.  Having considered the contents of the above authorities[12], we think that the relevant law can be summarized into the following ten points:

(1)   Once the prosecution have named a person on the back of the indictment[13], they must summon this witness to attend court, and as to whether this witness will actually be called at the trial to testify, it depends on whether certain agreement can be reached between the prosecution and the defence.

(2)   In calling a witness on the back of the indictment, it is open to the prosecution to either examine the witness in chief first and then leave him/her to the defence for cross-examination, or tender the witness directly for cross-examination with no examination-in-chief.

(3)   Provided that a witness on the back of the indictment appears to be capable of belief, the prosecution must perform their duty in point (1) above even if the evidence of that witness may be inconsistent with the case that they seek to prove.

(4)   It is only when the prosecution find that a witness on the back of the indictment is not capable of belief that they may exercise their discretion and do not do as required in point (1) above.

(5)   Before deciding that a witness on the back of the indictment is not credible, the prosecution must consider the question in a manner which would further the interests of justice without doing any prejudice intentionally to the defence.

(6)   If the court has any doubt about the prosecution’s decision in point (5) above, it may first invite the prosecution to call the witness in question, who is named on the back of the indictment; and the court is entitled to call the witness on his own motion if the prosecution refuse.

(7)   Even if the prosecution reasonably believe that a witness on the back of the indictment is not capable of belief, they are still obliged to arrange for the attendance of the witness on the date of the trial for the defence to consider if they want to call him/her as a defence witness.

(8)   The above discussions on a witness named on the back of the indictment being not capable of belief presupposes that something has occurred between the case being committed for trial and its commencement, which is sufficient for the prosecution to cast doubt on the credibility of that witness.

(9)   If the prosecution do not believe a person’s evidence at the outset, they simply do not need to include this person’s written record in the committal bundle, which also means that they do not need to name this person as a witness on the back of the indictment and are just required to include this person’s written record as unused material to be disclosed to the defence.

(10)   The above discussions have also presupposed that the prosecution are able to arrange the untrustworthy witness on the back of the indictment to attend court for the defence to decide if they would call him/her as a defence witness.  If such arrangement is really beyond the prosecution’s control, the court is entitled to deal with the matter in its discretion depending on the actual circumstances of the case[14].

Applicability of the relevant principles in the present case

31.  The respondent do not dispute the law regarding calling of witnesses by the prosecution.  Their assertion is that Chia Wah himself, a detective police constable of the Narcotics Bureau, had been convicted and sentenced for possession of a dangerous drug, and therefore he, as a witness on the back of the indictment, was not capable of belief, and the prosecution were entitled not to call him to court to give evidence.

32.  In our view, the respondent’s argument cannot stand, nor could it have helped solving the problem that arose at the trial.  The reasons will be analysed as follows:  First, according to the precedents provided by both sides and those other cases referred to therein, the circumstances which render a witness on the back of the indictment suddenly not capable of belief are all related to the case that the witness is concerned with.  For instance, a very good example was where the victim in a wounding case suddenly changed his story and went to solicitors to make affidavits indicating that the accused had not been an assailant who attacked him[15].

33.  The respondent asserted that the above example was only one of the circumstances rendering a witness on the back of the indictment not capable of belief, and other [such] circumstances should also include those that might seriously attack the witness’s integrity.  The point is, despite our repeated questioning, the respondent remained unable to give a specific answer to indicate “where to draw the line” for our consideration, which is completely unsatisfactory.  Conversely, unless the witness had conducted himself/herself in any way which was directly related to a certain case, such as a volte face in his/her evidence, we cannot see how the prosecution could conclude that the witness has become not capable of belief in the case because of other problems.  If the prosecution were in fact trying to say that the defence would make a fuss out of those other problems about the witness, with respect, it was something totally irrelevant with this issue.

34.  Finally, from the above extract of the conversation in court, it can be seen that the counsel on fiat had never seriously explained why Chia Wah was not to be called and had never said he did not know Chia Wah’s whereabouts[16], the trial judge nevertheless readily accepted the prosecution’s decision without considering that she herself might call Chia Wah for the defence to cross-examine.  This is a material procedural irregularity.  This is also why we come to the view that even if (and only “even if”) the respondent had submitted correctly on the definition of “not capable of belief”, the outcome still could not help in rectifying the above mistake.

35.  For completion, we will add this.  The respondent has correctly pointed out in their submissions that there are precedents involving voir dire (such as Leung Wing-ning v R [1981] HKLR 96) in support of the prosecution calling other witnesses who were at the scene in response to the defence allegations against a certain specific witness.  Nevertheless, these precedents do not support the prosecution not to call any witness named on the back of the indictment upon the defence’s request, and in fact this issue does not come up in these precedents.

36.  For the above reasons, we find that the first and the second grounds of appeal have been established.

Other grounds of appeal

37.  In the light of our decision in para 36 above, it is not necessary to deal with the applicant’s other grounds of appeal.

Decision

38.  We grant leave to the applicant to appeal against his conviction and allow his appeal, quash the conviction, and set aside the sentence.  With no objection from the applicant, we order the present case be remitted to the Court of First Instance for retrial before another judge with a jury.  In the meantime, the applicant is to be remanded in the custody of Correctional Services Department.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.