HKSAR v. KONGMAN ALSO KNOWN AS KONG CHUN WAI

CACC 91/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 91 OF 2015

(ON APPEAL FROM DCCC NO. 928 OF 2014)

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REASONS FOR JUDGMENT
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1.  The applicant sought leave to appeal against his conviction on 4 March 2015 after trial by District Court Judge Dufton of a charge of unlawfully trafficking in dangerous drugs, namely 15.19 grammes of cocaine and 11.70 grammes of herbal cannabis, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to 5½ years’ imprisonment. At the hearing I refused the application and said that I would give my reasons in due course. That, I do now.

The trial

2.  There was no dispute that the applicant was intercepted by two police officers as he sat in the driver’s seat of a motor car, which was parked outside 1, Holly Road, Happy Valley.  Similarly, there was no dispute that the dangerous drugs the subject of the charge had been found by police officers in two separate locations of the motor car in two separate searches of the motor car.  First, dangerous drugs were found in the glove box in the front of the driver’s seat in a search of the motor car, where it was parked outside 1, Holly Road.  Secondly, more dangerous drugs were found in the pocket of the driver’s side door in a search at Happy Valley Police Station.

The prosecution case 

3.  PC 16867 and SPC 48909 testified in respect of the circumstances of the interception of the applicant as he was seated in the driver’s seat of the parked motor car.  A short conversation with the applicant was followed by a search of the glove box, which revealed a plastic bag containing 14 tinfoil packets, of what they suspected was dangerous drugs.  The applicant was arrested for possession of dangerous drugs and cautioned, in response to which the applicant said that he had nothing to say.

4.  PC 16867 testified that, after the car had been taken to Happy Valley Police Station, he informed the applicant that he was going to search the car again and asked if it contained any other dangerous drugs.  He said that the applicant replied in the affirmative and, having been taken to the motor car, pointed to a black plastic bag in the pocket of the driver’s side door, saying that there was something inside the bag.  PC 16867 said that he found 20 tinfoil packets inside the bag.  Also, PC 16867 said that he found two plastic sheets containing what turned out to be cannabis.  He said that the applicant did not reply when asked what the substance was.

The defence case

5.  The applicant testified in the defence case.  He said that he did not know of the presence of any dangerous drugs in the motor car, which was his mother’s motor car.  He lived with his parents, his younger brother and his own wife and daughter in a home in Tuen Mun.  All members of the family had access to the motor car, including his father and brother.  Each of them had criminal convictions for trafficking unlawfully in dangerous drugs.

6.  The applicant said that he had driven the car from Tuen Mun in order to keep a rendezvous with a friend in a Holly Road at 7:30 p.m. that day.  He simply took the keys to the motor car from where they were lying at home.  He did not know who had last driven the motor car.  After the police officers had intercepted him, by opening the car door, he had disembarked on their instruction and had been searched by SPC 48909, whilst PC 16867 searched the car.  Then, the latter held up a bag and asked him what it was.  He replied that he did not know.  When told by PC 16867 he suspected it was dangerous drugs and that the applicant would be charged, he said nothing.

7.  At Happy Valley Police Station he was told that the motor car would be searched again, but he was not asked if there were any other dangerous drugs in the motor car nor did he point out the presence of dangerous drugs in the driver’s side door.

Grounds of appeal against conviction

8.  At the hearing, Mr Oliver Davis, who represented the applicant at trial, said that he relied on the single ground of appeal against conviction and his supporting written submission.  He submitted that the judge had erred in determining that PC 16867 and SPC 48909 were credible and reliable witnesses.  He contended that relevant to that issue was the undisputed evidence that neither of those officers had made any note, either in their police notebooks or in subsequent written statements, of the alleged oral admissions made by the applicant at Happy Valley Police Station prior to the search and discovery of dangerous drugs in the pocket of the driver’s side door.  Moreover, he contended that prior to the trial the defence was unaware that such evidence was to be led in the prosecution case.

A consideration of the submissions

9.  The issues canvassed in the grounds of appeal against conviction were matters canvassed before the judge at trial, which he addressed in his Reasons for Verdict.  Of the issue of whether or not any written record had been made by the two police officers of the alleged oral admissions made by the applicant at Happy Valley Police Station, the judge said:[1]

“ In cross-examination PC 16867 and SPC 48909 agreed that the conversation PC 16867 had with the defendant prior to finding the drugs in the pocket of the driver’s door was not recorded in either their note-books or witness statements. The post-record of the arrest and the witness statement of PC 16867 (which were read out in cross-examination) recorded that the defendant pointed out there was still dangerous drugs inside the storage compartment of the lower inside of the driver’s door. SPC 48909 said he also stated in his note-book and witness statement that the defendant pointed out where the drugs were.” [Italics added.]

10.  The judge noted that in his final submissions Mr  Davies asserted that the defence only became aware at trial that it was the prosecution case that the applicant had made oral admissions at Happy Valley Police Station on which the prosecution relied.

11.  Of the weight to be attributed to oral admissions that were not evidenced in writing, the judge said:[2]

“ The courts have said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement (see HKSAR v Lau Ho Yin CACC 288/2011 & HKSAR v Chan Yuk Ling CACC 102/2012).”

12.  However, he went on to say:[3]

“ The defendant refused to sign this post-record. This Mr Davies submits is indicative what was written down in the post-record did not happen. There is however no evidence before the court as to why the defendant refused to sign.

In my view whilst it clearly would have been better if the details of what was said were included in the post-record I am satisfied this is not a case where the defence were unaware admissions were said to have been (made?).  I am satisfied by reciting in the post-record the defendant pointed out there were more drugs in the pocket of the driver’s door the defendant was made aware of this alleged admission.”

13.  As the judge noted earlier, the notebook entry made by PC 16867 was read out by the officer at the behest of Mr Davies in cross-examination.  The officer testified that it stated:[4]

“ At 11.12 pm on 3 September 2012 -- at 2014, in the report -- in the search room inside the report room of Happy Valley Police Station I, PC 16867, Man San-leung, said in Punti to Chinese male Kong Man, ‘Kong Man I am plain clothes Officer PC 16867, Man San-leung, of Anti-Burglary Team, Wanchai District. I now post-record for you what happened earlier on in the car park of Happy Valley Police Station. I am now post-recording the cautioned statement you said to me at that time. At that time...At that time I said to you, ‘Kong Man, I am plain clothes PC 16867, Man San-leung, of Anti-Burglary Team, Wanchai District. I now arrest you for possession of dangerous drug at the car park of Happy Valley Police Station at 8.50 pm on 3 September 2014 because at the time when I was searching car JX 6660 in your presence you, Kong Man, pointed to me the storage compartment, that is the inner lower part of the driver’s door, at the right front of the car, you pointed to me that there was still dangerous drug there. Therefore, I found a black plastic bag containing one packet wrapped in newspaper containing resealable transparent plastic bag which contained 20 packets in silver tin foil containing...’ Twenty packets in silver tin foils containing resealable plastic bag which contained suspected dangerous drug, and one packet in colourful paper which contained two packets sealed up in transparent plastic bag, containing suspected dangerous drug.” [Italics added.]

PC 16867 said that after he had cautioned the applicant, the latter declined to sign the post-record entry.

14.  Earlier, again at the request of Mr Davies, PC 16867 had read out parts of his witness statement dealing with the same issue:[5]

“ At 2049 hours on the same day the searching of JX6660 in the presence of AP started at that time. AP pointed out to me that there was still dangerous drug inside the storage compartment at the lower inner side of the driver’s seat...driver door, which was at the right front of the car. While AP was standing next to the private car JX6660 parked at the car park space number 21, therefore, after the search conducted by me I found a black plastic bag containing a packet wrapped up in ... newspaper, inside which there was a resealable transparent plastic bag inside the storage compartment. The transparent resealable plastic bag contained 20 packets in silver tin foil, each containing resealable plastic bag containing suspected dangerous drug (white powder)...”

15.  For his part, in cross-examination by Mr Davies, SPC 48909 said that whilst he agreed that he had not made a record in his notebook or his witness statement of the details of the conversation between PC 16867 and the applicant at Happy Valley Police Station prior to the discovery of dangerous drugs in the pocket of the driver’s side door he asserted, without being challenged, that:[6]

“ In my notebook it was clearly stated that the AP pointed out where dangerous drug was. In relation to the conversation, I am very sorry that was not recorded down.”

16.  In addressing these issues, the judge said:[7]

“ I accept the evidence of the police officers that the defendant pointed out that there was more drugs in the car and pointed specifically to the driver’s door. The fact that in re-examination when asked whether the reference to pointing out in the post-record was a verbal or physical pointing out PC 16867 replied verbal not physical does not cause me to doubt the evidence of PC 16867 or SPC 48909. In answer to the court having reminded PC 16867 of his evidence-in-chief PC 16867 confirmed that the defendant both verbally and physically pointed out where the drugs were. Nor does the fact that the defendant refused to sign this post-record cause me to doubt the evidence of the police officers.”

17.  Earlier, the judge addressed other aspects of the credibility and reliability of the two police officers.　 The judge noted that, although PC 16867 had testified[8] of his observations of the applicant and of having had a short conversation with the applicant after he had first been intercepted by police officers, PC 16867 accepted that the events leading up to the search of the glove box had not been recorded in his police notebook or his witness statement:[9]

“ The fact that PC 16867 did not record these matters in the post-record or in his witness statement leads me to approach PC 16867’s evidence as to what took place at Holly Road with caution. PC 16867’s evidence however does not stand alone. SPC 48909 also gave evidence of the conversation with the defendant and in cross-examination said he also saw the defendant looking at the glove box.”

18.  However, the judge went on to find:[10]

“ I am satisfied so I am sure both police officers saw the defendant looking at the glove box and that was why the glove box was searched…”

Also, the judge found:[11]

“ … I am satisfied so I am sure PC 16867 saw the defendant looking around which aroused his suspicion; the police officers then approached the car and on almost reaching the driver’s door they heard the sound of the ignition being turned on; the conversation with the defendant was as testified by the police officers; the police officers saw the defendant keep looking at the glove box and that whilst the defendant was still sat in the driver’s seat PC 16867 searched the glove box and found the drugs.”

19.  Noting that they differed in their evidence as to whom it was who had searched the glove box of the motor car, the judge found:[12]

“ I accept the evidence of SPC 48909 that whilst the defendant was still sat in the driver’s seat PC 16867 searched the glove box and found the drugs. I am satisfied PC 16867 is mistaken in his recollection that SPC 48909 searched the glove box. SPC 48909’s evidence is also consistent with the post-record made by PC 16867 in that the post-record, as read out in cross-examination, recites that the defendant was sitting in the driver’s seat when PC 16867 found the drugs in the glove box. In cross-examination PC 16867 agreed that the post-record was read to the defendant and that the defendant signed and agreed.” [Italics added.]

20.  The entry in the notebook of PC 16867, to which the judge referred, was to the following effect:[13]

“ PC 16867, Man San-leung, I am now post-recording the cautioned statement in respect of my arresting you in Holly Road at 7.45 pm...on 3 September 2014. At that time I said to you, ‘Kong Man, I am PC 16867, Man San-leung, plain clothes Officer of Anti-Burglary Team, Wanchai District. I arrested you for possession of dangerous drugs at 7.45 pm on 3 September 2014 because I found, inside the private car JX 6660 you were driving outside number 1 Holly Road, I found something. At that time you were sitting at the driver seat... I found, from the glove -- inside the glove compartment, that is at the right lower bottom of the dashboard of your private car JX 6660, one resealable transparent plastic bag containing 14 packets each in tin foil, containing small transparent resealable plastic bag which contained suspected dangerous drug. 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 and given in evidence. After I cautioned you, you replied to me, “I have nothing to say.” ” [Italics added.]

21.  It is perfectly obvious, from the matters referred to above that the judge subjected the evidence of the two police officers to a rigourous and thorough examination in order to determine their credibility and reliability.  His examination was exhaustive.  He addressed and rejected the very matters now the subject of the grounds of appeal.  In doing so he gave cogent reasons.

Conclusion

22.  In the result, I was satisfied that there is no merit in the grounds of appeal against conviction.  Accordingly, the application for leave to appeal was refused.

23.  The applicant is advised that, following the refusal of his application by the single judge, he may renew his application for leave to appeal against sentence, if he wishes to do so, by filing Form XIII of the Criminal Appeal Rules, Cap.  221 within 14 days.  However, he is informed that if the Court of Appeal comes to the conclusion that there was no justification for the renewal, it has power to make a direction for the loss of time, namely in respect of some or all of the time that the applicant has served in custody for this offence since he filed his notice of his application for leave to appeal pending the hearing of his application.

[1] Reasons for Verdict, paragraph 36.

[2] Reasons for Verdict, paragraph 37.

[3] Reasons for Verdict, paragraphs 38-9.

[4] Appeal Bundle, page 57 D-S.

[5] Appeal Bundle, pages 55 N – 56 B.

[6] Appeal Bundle, page 78 O-P.

[7] Reasons for Verdict, paragraph 40.

[8] Appeal Bundle: evidence in chief, pages 207 L – 20 M; Cross examination, pages 43 L – 44 C.

[9] Reasons for Verdict, paragraph 30.

[10] Reasons for Verdict, paragraph 32.                                                                  

[11] Reasons for Verdict, paragraph 35.

[12] Reasons for Verdict, paragraph 34.

[13] Appeal Bundle, page 47 E-P.