HKSAR v. CHAN CHE YUNG

CACC 360/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 360 OF 2012

(ON APPEAL FROM HCCC NO 424 OF 2011)

_________________

________________________

REASONS FOR JUDGMENT

________________________

Barnes J (giving Reasons for Judgment of the court):

INTRODUCTION

1. The appellant (who was D1 on the indictment) was jointly charged with Wong Kin Hei (D2) and Chu Tin Long (D3) on one count of trafficking in a dangerous drug (ie 195.61 grammes of ketamine).  D3 pleaded guilty to the offence while the appellant and D2 pleaded not guilty.  They were convicted by the jury and the trial judge sentenced both of them to be detained in a Training Centre.

2. Leave was granted by Lunn JA for the appellant to appeal against conviction and bail pending appeal was also granted to her.

3. At the conclusion of the hearing we allowed the appeal, quashed the conviction and set aside the sentence.  We did not order a re‑trial and we ordered costs of the appeal and the bail pending appeal proceedings be to the appellant, to be taxed if not agreed.  We indicated that we would hand down our reasons in due course, which we now do.

ISSUE AT TRIAL

4. There was no dispute that when the appellant and D2 were intercepted by the police, a black bag containing the ketamine in question was found at the bottom of her handbag (though the appellant disputed the circumstances of the interception).  The only issue was one of knowledge.

PROSECUTION CASE

5. The prosecution case was relatively straight‑forward. A group of uniformed police officers were carrying out an anti‑pickpocket operation in the vicinity of Hip Wo Street in Kwun Tong when one officer (PW1) noticed a group of three (the appellant, D2 and D3) outside a public toilet acting suspiciously.  Upon seeing PW1, the three ran into an alley leading to Hip Wo Street.  PW1 gave chase and his team members followed suit.  D2 was heard to shout, while fleeing, “police, run quickly.”

6. The appellant was intercepted by PW1 and D2 was stopped by another officer (PW3).  Upon search, a black plastic bag containing the ketamine in question was found in the bottom of the appellant’s handbag.  A wallet and a mobile phone belonging to D3 were also found inside the appellant’s handbag.  The appellant was arrested for possession of dangerous drugs.

7. Nothing suspicious was found on the person of D2 during the search but he was also arrested by PW4 when the police learned that he was the appellant’s boyfriend.

8. Against the appellant, the prosecution relied on the fact that the dangerous drug in question was found inside her handbag, her flight from the scene upon seeing the uniformed police (indicating guilty knowledge), and the admissions she made under caution.

9. The appellant (through her legal representative) challenged the admissibility of the notebook entry and the video‑recorded interview.  After holding a voir dire, the judge—while ruling that the appellant voluntarily took part in the post‑recording of the notebook entry and the video‑recorded interview—nevertheless exercised her discretion to exclude the same on the ground of unfairness.  The judge was of the view that the appellant (who was then aged 16 years and 5 months) faced a very serious charge.  There was no urgency in carrying out further investigation and a fair and sensible course was for the police to notify the appellant’s parents of her arrest so that she could have the benefit of their advice and the chance to seek legal representation.

10. The case against D2, who had nothing suspicious on his person, was his flight from the scene upon seeing the uniformed police and certain admissions he made which was post‑recorded in the notebook entry and answers he gave during a video-recorded interview.  D2 (who was also 16 years of age at the time) did not challenge the admissibility of the notebook entry or the video‑recorded interview.  The same were in fact admitted into evidence by way of admitted facts.  No application was made by D2’s counsel to the judge to exclude either the notebook entry or the video‑recorded interview on the ground of unfairness.

11. D2’s response to the arrest and caution at the scene was preceded by this utterance by PW4: “Your girlfriend also indicated that a person called Ah Long stuffed the packet of dangerous drugs into your girlfriend’s handbag and told you and your girlfriend to wait for a phone call” (“the incriminating remarks”).  No application was made to edit the incriminating remarks from the post‑record even though the admissions made by appellant were ruled inadmissible by the judge.

DEFENCE CASE

12. The appellant gave evidence.  Her case, in a nutshell, was that she had no idea what was inside the black bag when D3 put it inside her handbag.  She was in the company of D2 and D3 earlier.  She knew D3 received a telephone call and had a black bag with him after he had gone into a toilet.  She was busy talking to her mother on the phone when D3 placed the black bag into her handbag and she did not asked D3 what it was. (Indeed closed‑circuit television footage showed that she was on the phone when D3 put a bag into her handbag.)  She said she did not mind carrying things for her friends.

13. The appellant denied that she was together with D2 and D3 outside the public toilet.  She said after D3 had gone to the toilet, she and D2 walked away.  There was no chase by any police officers. She and D2 were merely stopped by two police officers—ie PW7 and PW8 and not PW1 and PW3—who used foul language to scold her.  She only learned that the black bag contained dangerous drug when she was taken back to the police station.

14. D2 did not give evidence.

GROUNDS OF APPEAL

15. Ms Charlotte Draycott SC for the appellant, advanced some 14 grounds of appeal and submitted that the conviction was unsafe and unsatisfactory.  For the purpose of this appeal, we needed only to refer to 4 of these grounds (Grounds 2, 3, 4 and 9).

Grounds 2, 3 and 4

16. These 3 grounds were linked.  Ms Draycott complained that the judge erred in not exercising her discretion to exclude D2’s admissions on the same basis when she excluded the appellant’s admissions (Ground 2).  Having failed to exclude D2’s admissions the judge then erred in failing to edit the incriminating remarks allegedly made by the appellant from the notebook entry (Ground 3); and, having failed to edit those remarks from the notebook entry, the judge erred in failing to give the jury proper directions how they should treat those remarks (Ground 4).

17. As mentioned earlier, D2, who was represented by counsel, did not challenge the admissibility of the post‑record notebook entry or the video recorded interview.  No application was made to the judge to exclude D2’s admissions on the same basis as the judge had excluded the appellant’s admissions.

18. Both the appellant and D2 had attained the age of 16.  Rule 5 of the Rules and Directions Issued by the Secretary for Security stipulated:

“As far as practicable, children and young persons under the age of 16 years (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child …”

19. Strictly speaking, the police was not obliged to interview the appellant or D2 in the presence of a parent or an adult person.  The judge, in her Reasons for the Ruling said:

“… the police are not precluded in any way from extending that protection to persons over 16 if circumstances indicate it is necessary or prudent to do so.”

The judge further said:

“… Whether the police choose to do so should depend on an assessment of various factors, including but not confined to, the nature and gravity of the offence; the physical condition and mental acuity of the arrested person; their degree of maturity; their educational level, etc. It would be necessary also to have regard to the requirements of the investigation and whether it was possible to find the parents or guardian.”

20. The judge was of the view the fact that the appellant was facing on conviction a sentence of 6to 9 years imprisonment alone should have alerted the police that the appellant’s parents should be notified so that they could decide whether legal representation was necessary and/or whether they wished to be present at the interview.

21. On the face of it, the same criteria might have applied to D2’s case.  However, bearing in mind D2 was then represented by an experienced counsel and no application was made before the judge, the fact that the dangerous drug was not found on D2’s person, and the fact that D2’s admissions were placed before the jury by way of admitted facts, it is difficult for this court to say that the judge should have nevertheless exercised her discretion to exclude D2’s admissions.

22. The position of the incriminating remarks was, however, quite different.  Clearly, as far as the appellant was concerned, such incriminating remarks (uttered by PW4 to D2 not in the presence of the appellant) were not admissible against the appellant.  Since the appellant’s case was that she did not know the black bag contained dangerous drug when D3 stuffed the bag into her handbag, the incriminating remarks would have the effect of informing the jury that the appellant had already admitted to the police at the scene that she knew the black bag contained dangerous drug. Such incriminating remarks did not advance the prosecution case against D2 but were highly prejudicial to the appellant’s case, particularly when her admissions recorded in the notebook entry and made during the video‑recorded interview were excluded by the judge.

23. No application was made to the judge to edit such incriminating remarks from the notebook entry: not by the appellant’s counsel; and not by D2’s counsel.  Nevertheless, it was our view that the judge should have edited those remarks from the notebook entry to ensure a fair trial.

24. Further, having failed to edit those remarks from the notebook entry, the judge only gave general directions to the jury how they were to deal with D2’s response under caution, she did not give any direction to the jury how they were to treat these remarks said by a police officer.

25. There was a real possibility that the jury rejected the appellant’s evidence of “no knowledge” by impermissibly relying on the incriminating remarks, made by PW4 when the latter cautioned D2, recorded in the notebook entry.

26. We were of the view that Grounds 3 and 4 were made out.

Ground 9

27. Ms Draycott complained that the judge erred in highlighting the difference between the appellant’s evidence in court (in relation to whether D2 had gone into the toilet) and what D2 had said in his record of interview, and suggested to the jury that the reason for such a variance could have been a mistake on the appellant’s part, or that she had forgotten what had happened, or that she was telling an untruth, when the out‑of‑court statement made by D2 was not admissible evidence against the appellant.

28. The appellant gave evidence that she and D2 were outside the public toilet when D3 went inside.  She testified that D2 did not go inside the toilet.  D2, in the video‑recorded interview, said both he and D3 went inside the toilet but he came out quicker. D2 did not give evidence.  D2’s out‑of‑court statement (which was at variance with the appellant’s evidence) could not be used against the appellant and was inadmissible as against her.  The judge compounded the error by telling the jury that the difference might have been a result of the appellant’s mistake, or that she had forgotten, or that she was “telling an untruth”.

29. The comment that the appellant could have been “telling an untruth” was particularly prejudicial and damaging to the appellant’s case.

30. We were of the view that Ground 9 was also made out.

31. For these reasons, we allowed the appeal, quashed the conviction and set aside the sentence.

RE-TRIAL APPLICATION

30.  Miss Chan for the respondent asked for a retrial.  Ms Draycott opposed to this application.

32. We had considered the evidence against the appellant should there be a retrial.  The most damaging evidence was of course the presence of the dangerous drug in her handbag.  On the other hand, she denied knowledge and denied fleeing from the uniformed police.  Without the alleged admissions under caution the prosecution case against her was not particularly strong.

33. We had also considered the fact that the appellant was a 16‑year‑old girl at the time of the alleged offence.  She served just under 2 months of her term in a Training Centre before she was granted bail pending appeal.  Since then she had been accepted back by her old school to continue her studies and is now a Form 5 student.

34. We had also weighed the public interest in ensuring those guilty of serious crime are brought to justice against the effects of putting this young appellant who succeeded in overturning her conviction through the ordeal of a further trial.

35. Having considered all the circumstances and balanced the conflicting interests, we decided not to order a re‑trial.

COSTS APPLICATION

36. Ms Draycott applied for costs of the trial, the appeal and the bail pending appeal proceedings.

37. After consideration, we were of the view that the appellant brought suspicion upon herself and in exercising our discretion, we did not grant her costs for the trial.

38. However, the appellant was successful in her appeal.  We saw no reason to deprive her of the costs of the appeal and the bail application.  We therefore exercised our discretion and ordered that costs of the appeal and the bail application be to the appellant, to be taxed if not agreed.