THE QUEEN v. CHAN CHO TEI

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J U D G M E N T

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Kempster, JA :

1. On 20 August 1987 on the verdict of a jury, Chan Cho Tei was convicted by Deputy High Court Judge Evans of possessing dangerous drugs for the purpose of unlawful trafficking. Against that conviction he seeks leave to appeal.

2. It was the Crown case that on 9 February 1987 at about 7.15 am the applicant and others were possessed of 22.636 grammes of a mixture containing 2.395 grammes of heroin contained in two bags present in the boot of motor car DM7024. That this mixture was so found is common ground. The issue arising at trial was whether or not the applicant was in possession of that car so as to give rise to the presumptions for which section 47(1) (a) & (b) and (3) of the Dangerous Drugs Ordinance provides. Section 46 (e) became material in consequence. That is the sub-section dealing with knowledge of the nature of the substances found.

3. There was compelling evidence, including the testimony of a witness whom the applicant called, that when the car was searched and while the engine was still running, the applicant was in the driving-seat. The substantive defence was that he was unaware of the presence of the dangerous drugs in the car and that the presumption of possession and the further dependent statutory presumptions were rebutted on the balance of probabilities. He did not, it may be mentioned, go into the witness box before the jury and depose to absence of knowledge albeit he did give evidence on the voir dire in relation to a document to which we shall shortly refer. But the witness already mentioned said that he had hired the applicant at short notice to drive the car and a passenger together with luggage, to the People's Republic of China.

4. It was also the Crown case that in the day of his arrest the applicant made a written admission that he knew that the bags in the boot of the car contained heroin. That document was admitted in evidence and the grounds upon which the conviction is impugned are that its admission was improper. It is contended that the evidence given on the voir dire, from two customs officers and from the applicant, showed that it was not given voluntarily. Further or alternatively, to use the language of pleading it is submitted that it should have been excluded as a matter of discretion by reason of breaches of the 1918 version of the judge's rules and thirdly, as having been taken in a manner prejudicial to the applicant.

5. On the voir dire and also, it would appear before the jury the Crown witness recited that the substantial part at least of this written document, being a record of questions and answers, was written down at the part of the staircase of Nam point Building adjacent to premises on the ninth floor which were being searched at the time by other customs officers; a part of the staircase which, for the purpose, had been turned into a temporary office with camp desk, chairs, statement forms, custody record book and, when required, the provision of bread and water. The "statement" began, they contended, at about 12.30 pm. when the applicant had already been in custody for some 5 hours and, according to the preamble to the form of "statement", was concluded one hour later ant 13.30 pm. On reading the document it is apparent that following the substantial interrogation the diet of bread and water was administered. The evidence disclosed, and this was not challenged, that the applicant was then brought to his place of abode where a search took place and, referring again to the document, it appears that "statement taking" was resumed at 8.30 pm. We do not know when it finished and no one asked any question to elucidate the point. It cannot have taken very long because at about that stage the applicant was removed to the Customs Investigation Bureau where, without objection, he was invited to identify certain persons found in two of the rooms.

6. The applicant contends, and this was the evidence which he gave on the voir dire, that the "statement" was made in its entirety at the Customs Investigation Bureau following representations made by an officer who, it was put to the customs witnesses, had a green birthmark on his neck or, as transpired in the evidence given by the applicant, had a colourless birthmark on his neck and was wearing a green jacket, the applicant said that this gentleman represented to him that he would be accepted as a prosecution witness if be assented to certain proposition to be recorded in the statement which were untrue but that if he did not co-onerate he might he charred with manufacturing dangerous drugs. After whit can only be described as protracted discussion rather than the hearing of submissions the trial judge ruled in effect that the contents of document comprised answers given voluntarily by the applicant and admitted it in evidence.

7. Subsequently the questionable features in the evidence of the prosecution witnesses which had been repented before the jury were canvasses by the judge in his summing-up. Those features were left to the jury to make of them what they would with the direction that they might reject the "statement" if they took the view that the circumstances of its taking rendered the contents unreliable. From the way the judge directed the jury in this regard it is clear beyond a peradventure that when ruling the "statement" voluntary he must have had these factors in mind.

8. These questionable features have been rehearsed and emphasised before us in considerable detail but in the end the conclusion is inescapable that whether or not the applicant's recorded answers were shown to have been given voluntarily was a matter for the trial judge who had the advantage of seeing and bearing the witnesses. The burden upon a party inviting us to come to a different conclusion is a heavy one and in the present instance has not been discharged.

9. The matters relied upon in support of the submission that in the exercise of his discretion the judge should have withheld the document from the jury are somewhat technical but none the worse for that. It is contended, rightly that this was not a statement in the conventional sense. It is a record of questions put and answers given and initialled by the applicant. It is also clear that once the admission of knowledge of the nature of the substance contained in the bags was made by the applicant the officers had sufficient evidence to charge him but failed immediately so to do. There was therefore a breach of the judge's rules.

10. The implications of such a breach have been considered in a number of authorities canvass in the course of this application between Rench and Bar. One was R v Prager (1972 1 WLR. 260. At p 265 Edmund Davies LJ, as he then was, said :

"Mr Comyn submitted before us that it was imperative that lord Widgery C J (I interpolate that he was the trial judge) decided first whether rule II, had or had not been breached, for if it had been, the confession should not have been admitted unless there emerged 'some compelling reason why the breach should have been overlooked'. He cited no authority for that proposition, which, he claimed, involved a point of law of very great importance. This 'complete lack of authority' is not suprising, for in our judgment, the proposition advanced involves no point of law and is manifestly unsound. Its acceptance would exalt the Judge's Rules into rules of law. That they do not purport to be, and there is abundant authority for saying that they are nothing of the kind. Their non-observance may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the judge's decision whether, breach or no breach, it his been shown to have been male voluntarily".

To like effect the judgment of the Court of Anneal in R v Collin & Another [1965] 1 WAR 1470. Also in Hong Kong at p 16 of in authority much relied on by the applicant, R v Lai Kin Min Cr App No 380 of 1983 where McMullin V-P said :

"it is now trite law that such a breach (that is a breach of rule 3 of the judge's rules) would not on its own be sufficient to invalidate the admission of the 'statement'".

This latter authority exhibited features, upon which this Court allowed an application and an annual, similar to those with which we are presently concerned. However, the basis of that decision was that the entire proceedings involved in taking the statement "involve an impropriety of an oppressive character". While, as we have indicated, there was a technical impropriety in the present case in that the applicant was not charged immediately after be he admitted knowledge of the dangerous drugs we not find that this impropriety or the procedure overall involve any element of oppression or prejudice. Indeed we are quite satisfied that no injustice was done to the applicant by the admission in evidence of the material document. In the premises the application for leave to appeal against conviction is refused and must be dismissed.