HKSAR v. YIP WAI LEUNG

CACC370/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2014

(ON APPEAL FROM HCCC 300 OF 2013)

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DECISION

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1. This is the applicant’s application for bail pending appeal.

2. The applicant was tried before Tong J and a jury on one count of trafficking in a dangerous drug, namely, 181.92 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  On 21 October 2014, the jury by a majority verdict of 5:2 convicted the applicant.  On the same day, he was sentenced to 7 years’ imprisonment.

3. On 31 October 2014, the applicant lodged an application for leave to appeal against conviction.  The application has not been listed for hearing. 

4. On 26 November 2014, the applicant applied for bail pending appeal.  The application is opposed by the respondent.

5. The relevant legal principles are well settled. Bail pending appeal is exceptional and generally speaking should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard: HKSAR v. Lau Man Kin [2010] 1 HKLRD 336. Where the “time” basis is relied upon, an applicant must still demonstrate that his appeal is reasonably arguable.

6. In view of the term of his sentence, the applicant’s application has to be on the “merits” basis.  The applicant therefore has to demonstrate that his intended appeal has a good prospect of success. 

7. The applicant’s trial first commenced in May 2014 before Toh J.  The trial was aborted and a new trial was ordered in the middle of the trial when a voir dire had been held to determine the admissibility of a video-recorded interview and an entry in the notebook of PC54575 (PW2).  The new trial began in September 2014 before Tong J.

8. The admitted facts of the case shows that on 4 March 2013 at about 12:25 pm, a police officer (PW1) while on patrol duties found inside a fire hydrant cabinet on the 17^th Floor of Wah Lim House, Wah Kwai Estate, a black plastic bag containing the drug in question, which was put inside 96 re-sealable plastic bags, together with a white plastic bag containing 270 re-sealable plastic bags.  These items were left in their original position while a team of police officers kept continuous observation of the scene. 

9. The prosecution case is that at about 5:40 pm, police officers keeping observation behind the fire door at the 17^th floor (PW2 and PW3) saw the applicant walking towards the fire hydrant cabinet.  According to PW2, the applicant bent down his body, the cabinet door then became open and the applicant squatted down as if to take something.  At that point, PW2 and PW3 rushed out to the corridor. The applicant was seen standing up, looking shocked and dropping the black plastic bag which he held in his right hand.  The applicant was then arrested.

10. The black plastic bag containing the drug and the white plastic bag containing re-sealable plastic bags were examined for fingerprints. It is not in dispute that, among the six fingerprints lifted from the white plastic bag, the one lifted from the outside of the bag was identified to be from the applicant’s left middle finger.

11. The prosecution had also produced still photographs captured from the CCTV images of the Ground Floor lobby and the lift at Wah Lim House for the period between 17:32.55 hour and 17:34.01 hour.  In the photographs, the applicant was seen together with his then girlfriend, Miss Tse (DW2).  It is not disputed that Miss Tse resided at Flat 1702.

12. Miss Tse was seen by a woman police officer (PW4), who was at the 17^th Floor of Wah Lim to assist in the police investigation, to be coming out from her flat. When stopped and questioned, Miss Tse told PW4 that she did not know the applicant.  She then left the scene.  On the following day, after learning of the contents of the CCTV footage, PW4 called Miss Tse, who explained that it was because she was afraid on seeing so many strangers on the corridor that she denied knowing the applicant.  Miss Tse declined PW4’s request to give a witness statement.

13. The admitted facts also reveal that at about 6:00 pm that day, police received a “999” call from someone who identified herself as Miss Chan, complaining of noise from dispute in the region of the 16^th to 20^th Floor of Wah Lim House. A uniform police officer (PW5) went to Wah Lim House in response to the complaint.  He did not find anything.  The contact telephone number left by the complainant was registered in the name of the applicant’s father. 

14. The prosecution evidence further shows that police received a report from a Mr Lo that his friend, the applicant, was stopped by some people in plainclothes at the 17^th Floor of Wah Lim House and he was concerned for his safety.  In response to the report, a police officer (PW6) went to the 17^th Floor accompanied by Mr Lo and Miss Tse.  After learning that a police investigation was taking place, PW6 related this to Mr Lo and Miss Tse and they left.

15. The video-recorded interview and the notebook entry were ruled inadmissible by Tong J after holding a voir dire, during which a site inspection was carried out.

16. The applicant elected to give evidence.  He was 16 years old at the time of his arrest and had a clear record.  He testified that, at the time in question, he was going with Miss Tse to her home.  He was holding Miss Tse’s handbag in which he had placed his father’s phone.  They had planned to meet Mr Lo later for a meal. When they reached the outside of Flat 1702, the applicant wanted to have a cigarette, so he asked Miss Tse to go inside first.  While Miss Tse was opening the door of the flat, the applicant walked towards the fire door.  At this point, PW2 and PW3 came out from behind the fire door and pulled him to go behind the door, while telling Miss Tse that they were friends of the applicant.  The police officers then disclosed their police identity and conducted a search on the applicant.  PW3 then left and returned later with the black plastic bag and the white plastic bag.  The applicant was told by PW3 to hold the white plastic bag, which he did.  He however refused to hold the black plastic bag.  He was later arrested.  The applicant denied he had approached the fire hydrant cabinet or opened the cabinet door to retrieve the things inside.  He also denied knowing there were two bags inside the cabinet and that one of them contained dangerous drug.

17. The applicant called Miss Tse as his witness.  She was at the time almost 18 years old and lived with her mother at Flat 1702.  She came to know the applicant in July 2012.  She testified that she was at the time returning home with the applicant. When they took the lift, the applicant was holding her handbag in which he had placed one of his phones.  When she was opening the door of her flat, the applicant was near the fire door.  Two men emerged and claimed to be friends of the applicant.  They took the applicant to behind the fire door. 

18. Miss Tse said after waiting inside her flat for about half an hour, she heard noises outside. At this point Mr Lo called the mobile phone that the applicant had put in her handbag.  He told Miss Tse to make a “999” call as he could not reach the applicant on his phone.  She therefore made a report to the police at about 6:00 pm, saying that her boyfriend had disappeared for a long time and there were noises outside.  Mr Lo called later saying he had also made a report, and he was downstairs with a uniform police officer.  Miss Tse therefore went out to meet Mr Lo.

19. According to Miss Tse, when she was in the corridor, two women came up telling her that her boyfriend was “busted” and asked whether she knew what happened, to which she replied “no”.  She then went to the bus terminal to meet up with Mr Lo, who was with a uniform police officer.  When the three of them came to the 17^th Floor, the uniform police officer spoke with people in plainclothes and told her that police was doing work.  She said she did not see the applicant.  On the following day, a woman police officer called her to say that she was seen in the CCTV footage and requested her to make a witness statement, which she declined.  She denied that the applicant had gone inside her flat before coming out again, or that she had told the woman police officer in the corridor that she did not know the applicant.  She also denied the prosecution suggestion that the reports to the police were made because she and Mr Lo, not knowing that the applicant had been arrested, were creating a distraction or diversion.   

20. One of the main disputes at the trial was what part of the fire hydrant cabinet could be seen by PW2 and PW3 when they kept observation through the glass window on the fire door and whether from behind the door they were able to see what they said were the actions of the applicant in the corridor.  A site inspection was arranged for the jury, during which PW2 demonstrated where and how he carried out the observation, and the jurors then took turn to adopt the demonstrated position to observe through the window on the fire door.  PW2 also demonstrated the movements of the applicant in front of the fire hydrant cabinet while the jurors took turn to make observation from behind the fire door.  Tong J had made a note of the site inspection.     

21. The applicant raised the following grounds of appeal in his notice of application:

(1) The police officer gave self-contradictory evidence in his two appearances in court with reference to whether he could see what happened at the scene.

(2) The police officers had colluded with each other with regard to their evidence.  At the trial, PC54575 (PW2) testified on matters that he did not mention on the first occasion he gave evidence.  This part of his evidence, however, tallied with the evidence given by PC3878 (PW3).

(3) During the site inspection, the demonstration given by the police officer was different from what actually happened and also differed from his testimony.  This might have caused the jury to make an erroneous decision.

22. Evidently, the thrust of the applicant’s complaint relates to the credibility and reliability of PW2 and PW3, who are the key prosecution witnesses.  In his summing-up to the jury, Tong J, when summarizing the evidence of PW2 and PW3 (see transcript pp.12D – 18R), had referred to their cross-examinations and some of the inconsistencies in their evidence raised by defence counsel, including what they could see from the glass window on the fire door and the demonstrations made by PW2 (see transcript pp.13H – 17J). 

23. The applicant is unrepresented in his appeal and in this application.  His legal aid application was recently refused.  His subsequent application to the Bar pro bono scheme is pending.  The notice of application for leave to appeal has not set out the particulars of the applicant’s complaints.  Given that he is unrepresented, it is not surprising that the applicant has not been able to develop his intended grounds of appeal or articulate the instances of inconsistency complained of.  What is now before this court is the basic appeal bundle, which does not include transcripts of the evidence of PW2 and PW3, nor that of the closing speeches of the defence and prosecution.  In the circumstances, it is not possible for this court to gauge whether there is any substance or merits in the grounds of appeal.    

24. As with other bail applications, the burden, however, is on the applicant to demonstrate that his appeal has a good prospect of success.  This is a high threshold.  On the available materials, the applicant has not been able to meet that high threshold. 

25. The applicant asked to be on bail so that he could take care of his parents who do not enjoy good health.  It was said that his father had a heart surgery some months ago and his mother suffers from anemia.  His family circumstances, however, is not a sufficient ground for granting bail pending appeal.

26. For the above reasons, the applicant’s bail application is refused.