HKSAR v. TOE ELI

CACC 120/2020

[2023] HKCA 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 120 OF 2020

(ON APPEAL FROM HCCC NO 373 OF 2019)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court)

Introduction

1.  The applicant was convicted after trial before Yau J (the judge) and a jury of two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134.  On 3 August 2020, he was sentenced to 27 years and 8 months’ imprisonment.

2.  The applicant’s application for leave to appeal against his conviction was heard and refused by the Single Judge on 26 October 2021.[1]  The applicant renewed his application on 9 November 2021. On 22 November 2022, the applicant sought to add a new ground.  He appeared in person at the hearing of his renewal application.

3.  On 1 August 2023, we refused the renewal application and dismissed the appeal.  We ordered 2 months’ loss of time.  We said we would hand down the reasons for our decision in writing in due course, which we now do.

The charges

4.  Count 1 alleged that on 3 October 2018 at the lift lobby, 2^nd Floor, Tai Fong Building, Cosmopolitan Estates, No 55 Ivy Street, Tai Kok Tsui, Kowloon, the applicant unlawfully trafficked in 21.42 grammes of a solid, containing 8.78 grammes of cocaine and 2.96 grammes of a crystalline solid, containing 2.95 grammes of methamphetamine hydrochloride (commonly known as Ice).

5.  Count 2 alleged that on the same day, inside Room 4, Flat 5, 2^nd Floor Tai Fong Building, Cosmopolitan Estates, No 55 Ivy Street, the applicant unlawfully trafficked in 4,171.01 grammes of a crystalline solid, containing 3,626.78 grammes of methamphetamine hydrochloride and 165 grammes of a solid, containing 65.8 grammes of cocaine.

The prosecution case

6.  At about 17:00 hours on 3 October 2018, having intercepted the applicant in the lift lobby on the 2^nd floor of Tai Fong Building, drugs as particularized in the first count were found by police officers to be in the applicant’s possession: a transparent plastic bag containing 20.6 grammes of a solid, containing 8.37 grammes of cocaine; a tissue packet, containing 2.96 grammes of a crystalline solid, containing 2.95 grammes of methamphetamine hydrochloride; a red plastic bag, containing 0.34 grammes of a solid, containing 0.18 gramme of cocaine; and a white plastic bag, containing 0.23 gramme of cocaine in his right front trouser pocket.  The applicant was arrested and cautioned in Cantonese by Detective Police Constable 33592 (PW1).  PW1 said that  the applicant uttered something in English which he did not understand (Count 1).[2]

7.  A set of keys were found on the applicant, which were used by the police officers to gain access to Room 4 inside Flat 5. Detective Police Constable 14369 (PW2) presented a search warrant in respect of Flat 5 to the applicant and told him to witness the search.[3]

8.  Inside Room 4, the police officers found a transparent plastic bag with two transparent plastic bags inside, containing a total of 1.99 kilogrammes of a crystalline solid, containing 1.51 kilogrammes of methamphetamine hydrochloride; a transparent plastic bag, containing 997 grammes of a crystalline solid, containing 970 grammes of methamphetamine hydrochloride; a transparent plastic bag, containing 940 grammes of a crystalline solid, containing 940 grammes of methamphetamine hydrochloride; and a solid transparent plastic bag, containing 165 grammes of a solid, containing 65.8 grammes of cocaine.[4]  Further, a black plastic bag containing a transparent plastic bag, inside of which were seven conical shaped solids, consisting of a total of 209 grammes of a crystalline solid, containing 182 grammes of methamphetamine hydrochloride was found hidden within a loudspeaker.[5] PW1 arrested and cautioned the applicant, who made a reply in English, but PW1 did not understand what the applicant had said (Count 2).[6]

9.  Paraphernalia associated with packaging drugs, namely, an electronic scale and some plastic spoons, were found inside Room 4.

10.  The fingerprints of applicant were found on the inside of the back cover of the loudspeaker, while his DNA was found on the plastic bags containing the drugs found inside the black cabinet[7] and the plastic bags containing the drugs found in the loudspeaker[8]. [9]

The post-recorded statement and the video-recorded interview

11.  At 21:55 hours on 3 October 2018, PW1 made a post-recorded statement of the two arrests in his notebook with the assistance of Woman Detective Senior Inspector Wong Po-ling, (PW3) acting as an interpreter.  PW1 recorded that he could not understand what the applicant said under caution after the two arrests in Room 4[10].  The applicant was asked to repeat his reply under the first caution[11].  Before he replied, he was cautioned again and it was recorded that the applicant said:

“… When you intercepted me, I said I was bringing these drugs back to Joy. And after you police found the drugs in my room, I said these things belonged to Joy and I only kept these because I was in need of money.”[12]

12.  A video-recorded interview was conducted at 00:58 hours on 4 October 2018, again with PW3 acting as the interpreter and the applicant spoke in English.  The applicant said the drugs belonged to his friend called “Joy”, but he did not know his full name.[13] He said he lived in Room 4 alone and he gave the keys and his address to Joy at the Jordan MTR Station on 2 October 2018, and that Joy returned the keys to him 4 to 5 hours later, at about 11:00 pm, in Tsim Sha Tsui.[14]  When the applicant returned home that night his head was “very free”[15] and he saw things on the table.  He knew they were illegal and wanted to throw them away[16] but did not really know what they were.[17]

The voir dire

13.  A voir dire was held to determine the admissibility of the post-recorded statement and the video-recorded interview. Various improprieties on the part of the police were alleged including that he was coached to give the answers in the video-recorded interview.[18]  The judge was urged to exercise his discretion to exclude those statements on the grounds that the post-recorded statement was not an accurate and verbatim record and the applicant was deprived of the assistance of an Igbo interpreter.

14.  The applicant gave evidence in the voir dire.  He told the court that he was from Burkina Faso, where the native language was French but the predominant language of the region he was from was Igbo, which was his first language.[19]  He stressed that he had not studied English at school and that “I learnt that just by in the society as I relate with people”.[20]  He said he could not read English “very well”.[21]

15.  The applicant testified that he was assaulted and threatened by the police officers into agreeing that the drugs were possessed by him.  He said that he was told if he co-operated they would not charge him with trafficking.[22]

16.  He was cross-examined on his English proficiency.  He said he did not finish school and “When I left school.  The people I meet outside in the society, that is how I learnt English.”[23] When prosecuting counsel put her case on the special issue to the applicant, he confirmed the declaration at the end of the post-recorded statement was written by him but he did not understanding its meaning.  He disagreed with the prosecution’s contention that he did not ask for an Igbo interpreter because he was able to speak and understand English.[24]

17.  At the conclusion of the voir dire, the judge ruled the post- recorded statement and video-recorded interview admissible.

The defence case

18.  The applicant gave evidence.  He testified that the drugs were not found on his person.[25] He repeated his evidence at the voir dire alleging assault by the police officers on the day in question in Room 4.  He said that he signed the post-recorded statement because of police improprieties, and threats and inducements made by PW3.[26] 

19.  The applicant explained that he had allowed his friend, Joy, to keep things there.  He stressed he had no knowledge that they were dangerous drugs although he felt they were illegal.  At the time of his arrest, he was on his way to throw the things away.[27]

Grounds of appeal and submissions

20.  A total of three grounds were advanced, two of which had been argued by his counsel at the leave hearing.

21.  The applicant argued that the judge erred in admitting the post-recorded statement and video-recorded interview:

(1)  by rejecting his evidence of his lack of proficiency of English on the basis that he could not have learned English in the way he testified;

(2)  in failing to take sufficient account that the lack of an Igbo interpreter rendered those statements unreliable per se;

(3)  by wrongly ruling that it was “mission impossible” that he learned English by or through communicating with people he met in his country.

22.  The applicant also contended that the judge was wrong to find that the prosecution witnesses were honest and credible.  He stressed that PW1’s evidence as to which level inside the cabinet was self-contradictory, in that he only realized his earlier evidence that the four bags of drugs were not found in the lowest shelf of the back cabinet was incorrect after he was shown the photographs. [28]

23.  At the hearing, the applicant reiterated that since English was not his first language, an Igbo interpreter should have been provided at the scene or at the time of the post-record and video-recorded interview to assist him.

The respondent’s submissions

24.  Mr Andrew Li, on behalf of the respondent, submitted that the judge had the benefit of viewing the video-recorded interview and was entitled to find that the applicant had a good command of English and had not been coached to give the answers as he alleged.  Mr Li further noted that it was the applicant’s evidence that he succumbed to the alleged threats, inducement and coaching when they said were all made in English, which meant that he could understand them.

25.  Mr Li submitted that it did not matter what the applicant’s mother tongue was.  What was important was that the investigation was conducted in a language the applicant understood so that he could participate meaningfully.  In the present case, the applicant was asked what language he spoke and he replied “English”.  Therefore, it was unnecessary to provide him with an Igbo interpreter.  In any event, there was nothing in the course of the post-recorded statement or video-recorded interview that suggested he could not understand the questions put to him.  Once the judge found that the applicant had a good command of English, there was simply no basis to exclude the out-of-court statements.

Discussion

26.  The three grounds are interrelated and at the hearing, the applicant confirmed that all the grounds focused on one complaint, namely, that as English was not his first language, he should have been provided with an Igbo interpreter at the scene or at the police station.  We shall deal with all three grounds together.

27.  The judge in his voir dire ruling stated that his ruling turned on two issues: (1) the credibility of witnesses; and (2) whether there was any impropriety as alleged by the applicant.

28.  The judge saw and heard the witnesses in the voir dire and was entitled to make findings as to their credibility.  It was clear from the written objections that the focus at the voir dire was whether the alleged improprieties took place and whether the judge should exercise his discretion to exclude them when there was a failure to provide the applicant with an Igbo interpreter.  Since only the admissibility issue was engaged at the voir dire, the precise place where the drugs in the cabinet were found was not in issue.  We found the complaint that the judge erred in not taking into account PW1’s inconsistent evidence as to which level inside the cabinet the drugs were found was misconceived.  It was noted that in his summing-up, the judge did repeat this part of PW1’s evidence to the jury:

“…PW1 says that after looking at the photographs he comes to know that he had remembered it wrongly in examination-in-chief in saying that the four bags of dangerous drugs, the electronic scale and the spoon were not found in the lowest shelf of the black cabinet when they were actually found there.”[29]

29.  Turning to the argument that the judge erred in finding the applicant neither an honest nor a reliable witness because of the way the applicant claimed to have learned English was “mission impossible”, the judge said:

“… As testified to by the defendant himself, the official language of the country where he is from is French and most people there speak Igbo. He, however, as pointed out above and as demonstrated in the video-recorded interview, has a good command of English. The way he learned the language as testified to by himself is totally unbelievable, if not mission impossible. The court does not accept his evidence.”[30]

30.  Contrary to the applicant’s contention, the judge did not reject the applicant’s evidence solely based on his disbelief of the way the applicant had learned English, but rather on a rational evaluation of all the evidence before him, in particular, what was demonstrated by the applicant’s answers in the video-recorded interview:

“… The video-recorded interview demonstrates clearly that the defendant has a good command of English. The answers he gave in the video-recorded interview are clearly not answers decided by police officers. This again clearly demonstrates that the defendant had not been coached as to what to say in the interview. This supports the evidence of the two prosecution witnesses while at the same time contradicts the evidence of the defendant.”[31]

31.  In order to determine whether the judge was justified in making the findings at the voir dire, we directed that the video-recorded interview be played at the hearing and we watched a significant part of it in open court.  It is noted that when we proposed to have the video played in court, the applicant said that he did not want it to be played because “seeing that upset me more”.

32.  At the commencement of the video-recorded interview, the applicant was asked what language he spoke and he said “I speak English”.[32] He was then asked if he understood and agreed the contents of the notice to persons in custody, to which he replied he understood.[33]  He was asked if he needed a lawyer and he said no.[34]  At no time did he request an Igbo interpreter.

33.  We noted the ease and spontaneity with which he replied to questions put to him.  Throughout the entire interview, there was no sign that the applicant was unable to comprehend the questions.  His answers were unequivocal and he was freely able to interact with PW3 in English.  In fact, at the hearing, the applicant confirmed to us that he could understand the questions put to him by PW3.  We had no doubt that was the case.  Even on the applicant’s own evidence, he must have had a good command of English in order to be able to understand all the threats and inducements which he alleged to have occurred.  We also noted, as a matter of fact, that during the voir dire, the applicant was able to instruct his counsel on one occasion that the Igbo/English interpreter in court “did not give a full translation of what he said”[35].

34.  Although the applicant was evidently asked at the video-recorded interview what language he spoke, he endeavoured to resile from his answer that he spoke English at the appeal hearing and still insisted that he should have been provided with an Igbo interpreter.

35.  We agreed with the respondent that there was no need to arrange for an Igbo interpreter for the applicant.  The applicant never made that request.  He told PW3 in the video-recorded interview in clear terms that he spoke English and it was plainly apparent from his video-recorded interview that his standard of English was much better than he claimed.  We did not find that he was disadvantaged in any way by the lack of an Igbo interpreter, nor did the lack of an Igbo interpreter render the post-recorded statement and the video- recorded interview unreliable.

36.  The judge had, in his summing-up, fairly put to the jury the issue of whether the applicant was able to understand what PW3 told him about the post-recorded statement and the video-recorded interview. He said:

“…you may like to consider the defendant’s level of English. In this regard, you may like to take into consideration the way and the manner in which the defendant answered questions in the video-recorded interview. …

… The defendant, of course, says in court that he was coached what to say in the video-recorded interview by the police officers and only those parts about Joy in the video recorded interview were truthful. …

You have watched the video-recorded interview and listened to what the defendant said during the interview. …

You may be of the view that in deciding whether the police had coached the defendant what to say in the video recorded interview, what the defendant actually said in the interview is a factor which you may like to consider. …”[36]

37.  We found that the grounds of appeal were devoid of merit.  We refused to grant leave and accordingly dismissed his appeal.

38.  We noted that Ground (3), the additional ground, was filed after the leave judgment was handed down.  The applicant filed an affidavit in support, attributing his late filing to his lack of legal advice.  We heard and considered it on a provisional basis to ensure that we were not shutting out a reasonably arguable ground.

39.  We considered it appropriate to order 2 months loss of time for the following reasons.  The applicant was represented by experienced counsel both at the trial and the leave application.  He had the benefit of a detailed judgment from the Single Judge and had been fully warned of the consequence should his renewal fail before the Court of Appeal.  The additional ground was not raised until after he filed the Notice of Renewal. The only explanation that he gave was that this was an afterthought and he had no legal advice.  We had still considered this additional ground even though there was no application for an extension of time to file it.  As to why this order pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap 221 should not be made, the applicant explained that he was emotional and did not know what he was doing.  We did not find his explanation convincing.  We found this an appropriate case to make such a loss of time order.

[1] Zervos JA, [2021] HKCA 1588

[2] Appeal Bundle (“AB”), 12P-R

[3] AB, 53P-U

[4] AB, 13A-E

[5] AB, 13E-H 

[6] AB, 31S-U

[7] Exhibits P5, P6 and P8

[8] Exhibits P9, P10 and P11

[9] AB, 14F-G and 41C-J

[10] AB, 92 

[11] AB, 106

[12] AB, 96-97 

[13] AB, 127, counter 184 

[14] AB, 136, counter 270; 137, counters 283-284; 138, counters 287-289 

[15] AB, 130, counter 219 

[16] AB, 124, counter 155 

[17] AB, 126, counter 169 

[18] Written objections, AB 266-268

[19] AB, 242N-P 

[20] AB, 242Q-S 

[21] AB, 249L-M 

[22] AB, 245-246 

[23] AB, 253R-S 

[24] AB, 262P-263H 

[25] AB, 32A-C 

[26] AB, 248P-R 

[27] AB, 34A-F 

[28] AB, 51G-J

[29] AB, 51G-J

[30] AB, 264P-S 

[31] AB, 264J-M

[32] AB, 112, counters 24-25

[33] AB, 113, counters 36-37

[34] AB, 114, counter 41

[35] AB, 250 I-K

[36] AB, 35J-38A