HKSAR v. LAU Man Hong

CACC 237/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 237 OF 2013

(On Appeal From District Court Criminal Case No. 234 of 2013)

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REASONS FOR JUDGMENT

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

1.  The applicant sought leave to appeal against his conviction on 10 July 2013 following a trial before District Court Judge S. D’Almada Remedios of unlawfully trafficking in a dangerous drug, namely 16.99 grammes of cocaine, on 12 December 2012 at Carpenter Road in Kowloon City, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 5 years and 6 months’ imprisonment.

2.  At the hearing we granted the application for leave to apply and, treating the hearing of the application as the hearing of the appeal, allowed the appeal and quashed the conviction, saying that we would give our reasons in due course.  This we do now.

THE TRIAL

The prosecution case

3.  The prosecution case was that at about 00:42 hours on 12 December 2012 the applicant and Cheuk Yuen Wing (“Cheuk”) were observed acting suspiciously in Carpenter Road by two police officers, PC 11583, Kong Cheong-lam, and PC 6601, Cheng Man-kit.  The police officers, who were dressed in plainclothes, observed the applicant and Cheuk for several minutes as they were standing on the pavement.  They were seen to look around and appeared to be nervous whenever someone walked past them.  Both officers approached the applicant, whilst other police officers approached Cheuk.  PC 11583 informed the applicant of his observations, requested his identity card and asked him what he was doing there.  The applicant produced his identity card from his wallet and told him that he had been taking Cheuk home when his car had broken down, so he was waiting there for it to be towed away. 

4.  Having noticed that the applicant kept putting his right hand into the right-hand front pocket of his jeans, the officer told him that he suspected him of trafficking in dangerous drugs and asked to search him.  The search revealed a white transparent plastic bag containing a crystallized substance in the applicant’s right-hand front pocket of his jeans.  PC 11583 cautioned the applicant for trafficking in a dangerous drug and arrested him.  The applicant said “Ah sir, I have nothing to say.  I need to find a lawyer”.  Also found on the applicant was $15,859 in his wallet and two mobile telephones.  Other police officers, including Sergeant 2902, arrived at the place of arrest.  Cheuk was not detained.

5.  At 01:15 hours, after the car which the applicant said that he had been driving had been searched, the applicant was taken by car to Kowloon City Police Station where at 01:20 hours he was handed over to the Duty Officer.  There, at his request the applicant was permitted to make a telephone call to his lawyer.

‘Post-record’

6.  At 02:15 hours, the applicant’s lawyer, Shea Ying Fai, arrived at the Kowloon City Police Station and had a private consultation with the applicant.  Then, between 02:30 and 03:05 hours, in the presence of the applicant’s lawyer, PC 11583 made a post-record on a Record of Interview form of the circumstances of the earlier arrest and cautioning of the applicant, together with his response.  The record asserted that outside Shop D, 67 Carpenter Road at 12:47 he had told the applicant that a search of him had revealed the presence in his right-hand front pocket of a transparent re-sealable plastic bag in which a crystalline substance was contained and that, after having been told that the officer suspected that it was dangerous drugs, the applicant had been arrested and cautioned, in response to which the applicant said “Ah sir, I have nothing to say.  I want to retain a lawyer”.  Then, at the request of the officer the applicant wrote out a declaration at the end of the written record acknowledging that he had read it, was aware that he could also, correct or add anything to it and stating “The content of this statement is true”.  Both the applicant and the officer signed the written record.

Video Record of Interview

7.  Later that day, between 18:36 and 18:48 hours, a video recorded interview was conducted of the applicant in the presence of his lawyer, Shea Ying Fai, at Hung Hom Police Station.  At an introductory stage of the interview the officer recited an account of the circumstances in which a search of the applicant had revealed the presence of a white transparent plastic bag in the right-hand front pocket of his jeans, as a result which he had been told the officer suspected that it was dangerous drugs and had been arrested and cautioned.  Further, it stated that in reply the applicant said “Ah Sir, I have nothing to say.  I want to get a lawyer.”  Then, the words of caution were administered to the applicant.  When asked to explain the meaning of his oral response to the words of caution at the time of his arrest, the applicant said “I won’t answer.”  When asked twice where he was in the small hours of 12 December 2012, the applicant said again “I won’t answer.”  However, when asked why he was at the place at which he had been arrested the applicant explained that he was waiting for a tow-truck because his car had broken down.

8.  It was an admitted fact that the cocaine found on the applicant had an estimated ‘street value’ of $24,966.

9.  In cross-examination PC 11583 denied the suggestion that he had not even searched the applicant in the street let alone found the dangerous drugs the subject of the charge.  Whilst he accepted that Sergeant 2902 had attended the scene soon after the arrest of the applicant, he denied that on the Sergeant’s instructions he and PC 6601 had taken the applicant to a police van, where he was searched.  Similarly, he denied the suggestion that in the van the Sergeant had thrown a cigarette packet at the face of the applicant and, having retrieved it, told the applicant that it was cocaine and that it belonged to him.  PC 6601 and Sergeant 2902 denied similar suggestions which were made to them.

The Defence case

10.  The applicant testified at trial, but called no witnesses.  He said that on the evening of 12 December 2012, he was driving his father’s car when it broke down after midnight on Carpenter Road.  He was giving his friend a lift home.  He had called a towing service to recover the vehicle and a friend to come and pick them up.  He was looking around awaiting their arrival when he was intercepted by a police officer, not PC 11583 but rather PC 6601.  At the latter’s request he produced his identity card and took out his belongings, namely a wallet, 2 mobile phones and some keys.  No dangerous drugs were found on him.[1]  Then, Sergeant 2902 and PC 11583 arrived.  The former instructed PC 6601 to take the applicant to a nearby police van for a further search.  In the police van, the applicant took off his jeans and underpants after which a visual inspection only ensued. Having consented to a search being conducted of his car, he watched from the police van as PC 11583 searched the car. 

11.  Whilst they were sitting inside the van suddenly the Sergeant threw a red cigarette packet at him, striking his face and said “You played a trick!”  The cigarette packet fell beneath the seat and, having picked it up, the Sergeant opened the flap and asked the applicant what it was.  The applicant said “I don’t know, it’s not mine.”  The applicant was able to see that it contained a transparent plastic bag, inside which was a brick-like object.  The Sergeant told PC 11583 that it was “Coke”. The Sergeant rubbed the cigarette box against the back of the applicant’s hand and said “I’m minded to settle up, what can you do?”  In reply, the applicant said “In that case, I have nothing to say.”[2] In cross-examination, the applicant said that he had also said “I have to get my lawyer.”[3]  Then, he was taken to a police station.

12.  At the police station, he heard PC 11583 inform the Duty Officer that some dangerous drugs had been found in the right-hand front pocket of the applicant’s jeans.  The applicant said that he told the Duty Officer that the drugs had not been found on him.  Rather, he complained “He just set me up.”  At his request, he was permitted to call his lawyer.  On his lawyer’s arrival he made the same complaint to him, namely that he had been ‘set up’.

13.  After the post-record was made, the applicant and his lawyer told the Duty Officer that the applicant would like to file a complaint, but the Duty Officer said that he was busy and asked them to wait.  Then, the applicant’s lawyer left the police station.  However, the applicant made a complaint to the Duty Officer on his own at 03:30 hours on 12 December 2012, which complaint was reduced to writing[4] by PC 11897.  In the complaint, the applicant said that at about midnight he had been intercepted by plainclothes police officers who had told him that they had to conduct a search of him and his car:

“  In the course of the search the complainee threw a red cigarette box at my face and said, “You play tricks?”  The location where I was hit was outside No. 67D Carpenter Road.  Apart from that, I also complain against him for arresting me with no evidence.”

14.  The applicant explained the provenance of the monies found on him at the time of his arrest.  Having been awarded costs, following his acquittal in another case in mid-October 2012, he had received a cheque on 10 December 2012 in his favour in the sum of $20,000.  Having deposited the cheque in his account, he withdrew all of the money on 11 December 2012.  He did so because he wanted to repay his father who had provided the finance for the previous litigation.  The money found on him was the balance of the $20,000 left over, after he had entertained friends to dinner that evening.

15.  In further explanation of his means, the applicant testified that he worked in his father’s property agent company, earning $15,000 per month, and received an allowance of $10,000 a month from his father.

16.  In cross-examination, the applicant was challenged repeatedly as to why it was that, if it be true that the dangerous drugs had not been found on him and that he had been ‘set up’, he had not said or written that in the making of the post-record and/or said that in the video record of interview.[5]  After the applicant had been asked several times why he had not asserted that he disagreed with the statement of fact in the post-record that dangerous drugs had been found on his person and protested that he had been ‘set up’, Ms Vivian Wong, who appeared for the applicant at trial, objected to the questions on the basis that they impugned the applicant’s exercise of his right of silence.[6]  Although no ruling was given, Ms Wong did not persist with that objection and counsel for the prosecution, Ms Margaret Ng, continued with that line of cross-examination not only in respect of the post-record but also in respect of the video record of interview.

Grounds of Appeal against Conviction

17.  In the grounds of appeal against conviction advanced by Mr Paul Leung, on behalf of the applicant, it was submitted that the judge erred in relying on the fact that, when it was asserted by the officer in both the written post-record and in the video record of interview that what the officer suspected to be dangerous drugs had been found in the right-hand front pocket of his jeans, the applicant had not contested the assertion with a protestation of his innocence or a statement of complaint.  Further, it was submitted that the judge erred in determining that the fact that the applicant had written out and signed a declaration to the effect that the account in the post-record was true constituted an admission by him that the dangerous drugs had been found on his person.  Finally, it was contended that the judge had compounded those errors by relying on those findings to reject his testimony.

18.  Next, given the importance of the credibility of PC 11583 and PC 6601, it was submitted that the judge had erred in failing to consider and/or give proper weight to the fact that PC 11583 did not search the applicant’s person immediately upon becoming suspicious of his activities and of his failure to make a contemporaneous record of the finding of the dangerous drugs on the applicant.

19.  Then, it was submitted that, in rejecting as untrue the applicant’s complaint to the Duty Officer and to the Complaints Against the Police Office, the judge had wrongly relied on the failure of the applicant to articulate the nub of that complaint in the post-record and the video record of interview.

20.  Finally, it was submitted that the judge had wrongly rejected the applicant’s explanations for his possession of money and telephones at the time of his arrest and erred in determining that it was to be inferred the drugs and the money were “for and connected with the trafficking of drugs.”[7] Similarly, she was wrong to conclude in respect of the applicant’s possession of two mobile telephones that one was for his personal use whilst the other “would have assisted him in the supply of drugs.”[8]

A CONSIDERATION OF THE SUBMISSIONS

21.  In her Reasons for Verdict the judge considered and rejected the applicant’s testimony that the dangerous drugs had not been found on his person, rather he had been framed by the police officers.  Of the applicant’s testimony, in the context of the assertions made in the post-record, the judge noted:[9]

“ The defendant’s allegation in his evidence in Court of what happened at the scene contradicted the record made by PW1 in the post-record (Exhibit P10) which recorded the interception, search, seizure of suspected DD, caution and declaration of arrest by PW1 at the scene.

Significantly the defendant confirmed the truth of the post-record (P10) in the presence of his lawyer and was admitted under s 65C of the Criminal Procedure Ordinance.  The same description was repeated in the opening of the VR1 and was likewise not disputed.  It was stated clearly and unequivocally that upon search at Shop 67D outside Carpenter Road the drugs were found and seized from the defendant’s right jeans pocket.”

22.  Of the applicant’s explanation for having written out the declaration in the post record and having signed it the judge said:

“ The defendant explained that he thought in the post record he was signing the correctness of his reply to the officer under caution. I did not accept his explanation. Quite clearly it was a confirmation of its contents and those contents included the fact that the drugs were seized from his jeans pocket.”

23.  The declaration written out by the applicant was in its standard form, namely:

“ I have read the statement. I know that I can alter, correct or add anything I wish. The content of this statement is true. I have made of my own free will.”

Earlier in the post-record, the circumstances of the arrest and caution of the applicant were set out by PC 11583:

“ (I) now arrest you for the offence of trafficking in a dangerous drug because when I searched you after intercepting (you), I searched out a white transparent re-sealable plastic bag containing crystalline substance suspected to be dangerous drug from the right front pocket of your trousers.  I now caution you.  You are not obliged to say anything unless you wish to do so, but what you say may be taken down in writing and given in evidence.  After being cautioned, you, male Lau Man Hong, said to me in Punti dialect “Ah Sir, I have nothing to say I want to retain a lawyer.”

24.  Thereafter, the record asserts that after the officer had told the applicant that he could “alter, correct or add anything” he wished, the applicant said there was no such need.  Then, the record states that the officer had read over the contents of the record to the applicant and allowed him to do so himself.

25.  At issue, is what was subsumed within the term ‘statement’ used in the declaration written by the applicant at the end of the post-record, in particular that “the content of this statement is true”, and beneath which appeared his signature.  Did it include an acceptance of the assertion that as a fact PC 11503 had searched the applicant at the stated time and place and found a white transparent re-sealable plastic bag containing a crystalline substance in the applicant’s right-hand front pocket of his trousers?  Or, was it limited to what it was asserted had been said by the officer and the applicant, irrespective of whether or not what had been said was true?  Or, was it limited to what was attributed to the applicant only, namely “Ah Sir, I have nothing to say.  I want to retain a lawyer?”

26.  It was the applicant’s evidence that no words of arrest or caution had been administered to him in the street.[10]  Rather, in the police van it was made clear to him that he was being framed up with having been in possession of the dangerous drugs and it was in those circumstances that he had said that he had nothing to say and wanted a lawyer.  It was the theme of his evidence that what he was acknowledging in participating in the making of the written record contained in the Record of Interview was confined to the statement that he had nothing to say and wanted a lawyer.[11]  The judge acknowledged that to be the effect of his evidence in her Reasons for Verdict.[12]

27.  Rule II of the ‘Rules and Directions for the Questioning of Suspects and the Taking of Statements’ issued by the Secretary for Security provides, inter-alia, that:

“ The caution shall be in the following terms:-

‘ You are not obliged to say anything unless you wish to do what you say may be put into writing and given in evidence.’

When after being cautioned a person is questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as is practicable, of the time and the place at which any such questioning or statement began and ended and the persons present.”  [Italics added.]

28.  Although there was a dispute between the prosecution and the applicant as to the circumstances in which he came to say that he had nothing to say and wanted a lawyer, there was no dispute that he had made that oral statement.  No doubt, in order to comply with Rule II, PC 11583 made a written record.  He did so in a ‘Record of Interview’ form, which provided a template for recording information as to when the making of the record began and ended and who was present.  All that information was included on the Record of Interview.  The officer provided a narrative description of what were described as “the circumstances” in which the applicant had come to make his statement.  It asserted that the applicant had been told that he had been searched; a re-sealable plastic bag containing a crystalline substance had been found in the applicant’s right-hand front trouser pocket, which the officer suspected to be dangerous drugs.  Clearly, none of those alleged events are to be regarded as the applicant’s oral statement.

29.  Then, it was asserted that the applicant had been told that he was under arrest for that reason and the words of caution administered.  Again, those alleged events are not to be regarded as the applicant’s oral statement.  However, they do set the alleged context in which he made his oral statement.  In addition, the officer provided the details of where and when the applicant’s oral statement had been made.

30.  It appears from the procedural steps taken by PC 11863 in the fashioning of the record contained in the Record of Interview that he followed the provisions of Rule IV of the Rules and Directions.  So, the applicant was asked to read what the officer had written and invited to make any “corrections, alterations or additions” he wished.[13]  Then, he was asked to write out the certificate, which repeated the invitation to correct, alter or add to the record and contained the assertion “This statement is true.”[14]  Finally, the officer wrote out a declaration of what he had done.[15]  However, as is apparent from Rule IV(a) those steps are most appropriate in circumstances where “a person says that he wants to make a statement.”  Here, the applicant simply made an oral statement, of which a written record was made.  Clearly, it was to his oral statement that the declaration written out by the applicant and acknowledged by his signature was directed.

31.  In the result, we are satisfied that the term ‘statement’ was limited to what was asserted by the applicant and no more.  It was not an acceptance by the applicant that the dangerous drugs had been found in his right-hand front pocket of his trousers.  We are satisfied that the judge erred in finding the contrary. 

32.  However, the judge did not leave matters there.  She went on to say:[16]

“ If however this was not a confirmation by the defendant, glaringly the defendant never challenged or disputed that the drugs were found in his jeans pocket. I accept that the defendant has a right of silence however given his eagerness and anxiousness to tell the DO immediately upon arrival at the police station that he was set up and the fact that defendant made this fact known to his lawyer who came to see him at the police station and attempted to make a complaint in the presence of his lawyer to the DO, it is incredulous (sic) that he did not state that either in the post record or VRI.

It is incomprehensible that he should have failed to take the opportunity to dispute the record.  When pressed under cross examination why he did not say he was set up on these occasions even though it was important, the defendant claimed that it was his lawyer who told him it was not important to do so.  I reject his explanation.”  [Italics added.]

33.  For the purposes of the compilation of the post-record no further caution was administered.  None was needed.  On the prosecution case, having been cautioned at the time of his arrest, the applicant had articulated his position unambiguously: he had nothing to say and he wished to contact a lawyer.  In the video record of interview, after the officer had recited to the applicant an account of the circumstances of the arrest and cautioning of the applicant which was in essence the same as that recorded in the post-record, the applicant was reminded of the words of caution.  Accordingly, it was in that context that he declined to answer a question as to the meaning of his oral response, “Ah Sir I have nothing to say.  I want to get a lawyer.”[17]  Similarly, he declined twice to answer the question as to his whereabouts in the small hours of the morning of 12 December 2012.[18] Clearly, in answering in that way, the applicant was availing himself of the very right about which he had just been reminded, namely in particular that he was not obliged to say anything.

34.  It is clear that the judge was aware of that right for she said as much in her Reasons for Verdict, “I accept that the defendant has a right of silence....”.[19]  Notwithstanding that correct analysis of the applicant’s position, nevertheless the judge went on to draw inferences adverse to the applicant from his failure to complain at the time that the post-record was compiled or during the video record of interview that he had been ‘set up’ by the police and that the dangerous drugs were not found on his person.  In doing so, the judge fell into error.  In his helpful and most realistic written submissions Mr Martin Hui conceded as much, accepting that the judge’s use of the applicant’s “failure to disclose his line of defence as a reason for rejecting his evidence ran counter to his right of silence.”

35.  The right of silence and the consequence of the exercise of that right were addressed in the judgment of the Court of Final Appeal delivered by Mortimer NPJ in Lee Fuk Hing v HKSAR:[20]

“ There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.

A person’s right against self incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.”

36.  We are satisfied that the judge’s error was a material irregularity.  

The applicant’s possession of two telephones

37.  Of the undisputed fact that the applicant accepted in the video record of interview that he was in possession of two telephones one of which had a sim card which related to an account of another person, the judge rejected the applicant’s evidence that a friend had borrowed that telephone and returned it without having removed the sim card.  She found that the two telephones belonged to the applicant.[21]  However, she went on to find that:

“ ...looking at the totality of the evidence that the possession of the two mobile phones was designed so that one of them would have assisted him in the supply of drugs while the other one would have probably been for his personal use.”[22]

There is no dispute that was a matter which had never been canvassed with the applicant in cross-examination by the prosecution.  Indeed, the fact of his possession of those telephones was not raised with him at all in cross-examination.

38.  Although the judge had referred to having regard to the “totality of the evidence”, the respondent did not suggest that there was any evidence that supported the important adverse inferences that the judge drew in respect of the two mobile telephones.  Certainly, the evidence does not speak for itself.  In those circumstances, we are satisfied that it was a material irregularity to draw an inference fundamentally adverse to the applicant on a matter which had not been canvassed with him in cross-examination.

The ‘proviso’

39.  Although in his written submissions Mr Hui invited the court to consider sustaining the conviction by the application of the ‘proviso’, he did so without great conviction.  We are satisfied that, having regard to the fundamental material irregularities which we have identified, it is not appropriate to apply the ‘proviso’.

Conclusion

40.  Accordingly, we allowed the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we quashed the applicant’s conviction.

Re-trial

41.  Although Mr Paul Leung opposed the respondent’s application for an order that the applicant be re-tried, we were satisfied that in all the circumstances it was appropriate to make such an order.  Accordingly, we ordered that the applicant be re-tried on a new indictment on the same charge and that the trial be expedited.  We ordered that the applicant be remanded in custody pending re-trial.

Costs

42.  Mr Hui did not oppose the application that there be an order in favour of the applicant for the costs of the appeal, but did so in respect of trial.  However, having regard to all circumstances, including the prosecution’s role in the impermissible cross-examination of the applicant, we were satisfied that it was appropriate that the applicant have his costs of the trial.  Accordingly, we made an order that the applicant have his costs of the trial and the appeal, to be taxed if not agreed.

[1] Transcript, page 140 A-I; cross-examination, page 147 K.

[2] Transcript, page 131 M.

[3] Transcript, page 147 J.

[4] Exhibit D2.

[5] Transcript, pages 145-151; pages 154-7.

[6] Transcript, pages 147-8.

[7] Reasons for Verdict, paragraph 89.

[8] Reasons for Verdict, paragraph 85.

[9] Reasons for Verdict, paragraphs 64-5.

[10] Transcript, page 184 D-F.

[11] Transcript, page 155 A-B.

[12] Reasons for Verdict, paragraph 66.

[13] Rule IV (d).

[14] Rule IV (e).

[15] Rule IV (f).

[16] Reasons for Verdict, paragraphs 67-8.

[17] Video Record of Interview, counters #21-2.

[18] Video Record of Interview, counters #22-3 and 67-8.

[19] Reason for Verdict, paragraph 67.

[20] Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at page 622 D-F, paragraphs 55-6.

[21] Reasons for Verdict, paragraph 82.

[22] Reasons for Verdict, paragraph 85.