R. v. LAM CHI KIT

IN THE COURT OF APPEAL

1994, No. 254
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for leave to appeal against conviction. The indictment in the present case contained one count. It was of trafficking in dangerous drugs. The drugs consisted of 250.73 gms of a mixture containing 109.72 gms of heroin.

2. On May 6 last year, before Mr Justice Stuart-Moore and a jury, the applicant, a man in his mid 20's, was convicted as charged and sentenced to nine years' imprisonment.

3. The drugs were found by the police in a cubicle in a flat in Choi Ha Estate, Kowloon which they raided on June 19, 1993.

4. In addition to the applicant, there were four other persons in that cubicle; and there were another four persons elsewhere in the flat.

5. The flat was the home of the applicant's girlfriend and certain members of her family. He himself were staying there at the time of the raid.

6. Whatever suspicion the finding of the drugs may have cast upon the persons in the flat, such finding alone did not amount to evidence on which anyone could have been convicted of any offence in respect of such drugs.

7. But the prosecution was able to produce a written confession, by the applicant to the police, of trafficking in those drugs.

8. The document takes the form of a record, signed by the applicant, of an interview of him by a detective police constable at Kowloon West Police Headquarters following the raid.

9. What he is shown admitting is that he was a paid and knowing courier of the drugs in question.

10. The confession was disputed. According to the police, it was a confession given by the applicant of his own free will. According to him, however, they had fabricated the record in question and beat him until he agreed to sign it.

11. After going into that issue in a voir dire the judge, being satisfied that the confession had been made and made voluntarily, admitted the same in evidence before the jury.

12. Typically of him, he summed-up to the jury accurately, fairly and helpfully. In the result, the jury convicted the applicant as charged.

13. As to that conviction, only one ground of appeal has been advanced. In its written form, it reads:

"The applicant faced two trials. In HC 301/93 he was indicted for robbery. The only evidence was a statement under caution. After a voir dire it was ruled inadmissible (77 H-K) and he was acquitted. In the second trial (HC 300/93) the applicant was indicted for a drug offence. The evidence against him included a statement made under caution. After a voir dire it was ruled admissible, by another judge.

The 2 statements (in the 2 trials) had been taken by the same officer, on the same day, immediately one after the other.

The ruling of the trial Judge in the present case is inexplicably inconsistent with the earlier ruling and constitutes an error of law or alternatively the decision to admit the statement could not have been satisfactorily proved beyond reasonable doubt. Further, the trial Judge misunderstood the implications of the ruling of the first trial judge. Further, the exclusion of the admission in the first trial creates a lurking doubt as to the verdict in the second trail."

14. The second trial referred to there is the one in the present case. The first trial was before Deputy Judge Burrell and a jury. The Deputy Judge's ruling in the voir dire before him was as follows:

"I turn finally to pp.16, the cautioned statement of the 6th defendant made in June of 1993, which represents the totality of the Crown's case that the 6th defendant counselled and procured others to commit a robbery. I rule pp.16 inadmissible in evidence for reasons unconnected with the allegations made by counsel on the defendant's behalf of improper conduct by the police, in particular threats of violence at the time of his arrest and subsequent interview. I express my reasons in this way specifically because of the fact that he may be facing other charges arising out of the same arrest."

15. In his own voir dire ruling, Mr Justice Stuart-Moore began by saying this about Judge Burrell's ruling:

"In a voir dire a short while ago, another judge ruled a statement to be inadmissible for a reason that remains a complete mystery to me. I have before me the ruling which makes it clear that that ruling that he gave should not affect the ruling in this matter and so I put that decision that he came to to one side and look at this matter afresh."

16. That is an accurate appreciation of the earlier ruling. Moreover and most importantly, defence counsel in the present case in the court below (not Mr McCoy who appears for the applicant before us) chose not to rely on the earlier ruling and even went so far as to object - successfully as it happened - to prosecuting counsel's attempt to go into what had happened in the earlier voir dire proceedings.

17. In those circumstances, Mr Justice Stuart-Moore was right to look at the matter afresh.

18. One of the cases drawn to our attention is the decision of this Court in The Queen v. Lam Wai Keung [1993] 2 Hong Kong Cases 162. For the submission made in the present cases in reliance on that decision to succeed, it would have to appear that there was: first, a very close connection between the evidence which the officer gave in the two sets of voir dire proceedings and, secondly, a clear inference that his evidence in the earlier voir dire had been disbelieved. It is quite impossible in the circumstances to say that that second condition is fulfilled.

19. Just because defence counsel was entitled to go into the earlier ruling does not mean that he was obliged to do so. It would have been inappropriate in all the circumstances for Mr Justice Stuart-Moore to have forced upon defence counsel a line which, for reasons which must have appeared good to counsel, he chose not to take up. The judge rightly refrained from doing so.

20. There is nothing unsafe or unsatisfactory about his ruling. Consequently, there is nothing unsafe or unsatisfactory about the jury's verdict based on the confession which was admitted in evidence as a result of that ruling. With an expression of our thanks to counsel on both sides for their assistance, we refuse leave to appeal against conviction.