HKSAR v. WONG KAM YI

HCMA71/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.71 OF 2005

(On Appeal From KCCC 7232 OF 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of ‘Trafficking in a Dangerous Drug’, namely 13.06 grammes of a powder containing 3.81 grammes of ketamine and two hand-rolled cigarettes containing a total of 0.32 grammes of cannabis, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance, Cap.134.  He now appeals against the conviction.

Findings of Facts

2. The facts as found by the Magistrate were as follows :

“11.   In the evening of 14 March 2004, PWs 1 & 2 were on duty waiting in the stairwell of the 11^th floor, Lok Hop House, Tze Lok Estate, Tze Wan Shan in Kowloon.  Their team was disbursed in other places near Lok Hop House and the OC had in his possession a warrant to search for dangerous drugs at the defendant’s home at Room 1105.  The stairwell door is seen at Ex. D1 (34).  The officers kept the door ajar and observed the hallway through the crack.  The defendant’s flat door was a few feet away.  The witnesses were cross-examined extensively on their ability to see through this crack.  At about 9.15 pm the defendant was seen approaching the door to his flat and was intercepted by PWs 1 & 2.  PW1 referred to the defendant as the ‘target’; I disabused myself of this perjorative [sic] term throughout.  PW1 told the defendant that he was suspected of being in possession of DD and searched him.  A packet of suspected DD was found in his right trouser pocket.  I found that this packet contained the dangerous drugs as described in the charge and the GCC (P7).  PW1 arrested and cautioned the defendant.  The defendant replied words to the effect of: Ah sir, it was only because I was in urgent need of money to spend that I carried the K-jai for Ah Ming, please give me a chance.  I found nothing untoward, improper or suspicious in the police actions regarding the defendant.  I gave that admission full weight.  After a house search the defendant was taken to the police station.  The defendant signed a post-recorded cautioned statement in PW1’s notebook (P5).  In this statement the defendant confirmed his earlier response to PW1 upon arrest.

12.    Having considered all the evidence and the facts that I had found I found that the prosecution had proven its case beyond a reasonable doubt and convicted the defendant accordingly.”

Grounds of Appeal

3. Counsel for the appellant has filed four grounds.  Before me, he withdrew Ground 2 leaving Grounds 1, 3 and 4 :

“1.    The Learned Trial Magistrate failed to consider sufficiently or at all that the sum total of the testimony of PW1-3 was insufficient and unreliable to prove the ingredients of the offence against the Appellant, and in so failing, the Learned Trial Magistrate also failed at the time of the Appellant’s conviction on 10/12/04 or any time prior to that to give adequate or at all [sic] reasons for convicting the Appellant.

.…

3.      The Learned Trial Magistrate accepted the testimony of PW1 and PW2 without viewing the locus in quo to ascertain as to where and how they had hidden and observe the Appellant at the material time, and with the presentation of fresh evidence in the form of an affirmation covering the viewing of the locus in quo together with photographs taken of the locus in quo, the testimony of PW1 and PW2 could not have been accepted and thus the Learned Trial Magistrate had wrongly accepted their testimony in convicting the Appellant.

….

4.      In all the circumstances of the case, the conviction is unsafe and unsatisfactory.”

Judgment

4. There are a number of particulars under Ground 1.  Only one causes me any concern.  That is, the magistrate failed to give adequate reasons for admitting into evidence the appellant’s alleged verbal admission and the post-record that followed.

5. This failure is not to be brushed aside, counsel contends, because first, the circumstances under which the verbal admission is said to have come about are plagued with inherent improbabilities and second, the signatures in the post-record were obtained without giving the appellant any choice.

6. In my judgment, there is merit in this contention.  Although I will not go so far as calling it inherently improbable, the prosecution’s version, i.e. the appellant admitted trafficking against a mere caution for possession, plus the absence of any follow-up question by the police on, say, the identity of Ah Ming, does strike me as unusual.

7. In addition, I do find the evidence of PW1 disturbing or at least unclear on the “lack of choice” point.  Below is an extract of his cross-examination on the post-record :

“Q.       You never explained to him.  You never remind him that he had the choice to do what you request or refuse to do what you request.

A.        I just reminded him that if he agrees, then he would sign and copy the declaration and if he did not agree, then he would not copy the declaration.

Q.        Where is it – where is it in the record you tell him that he agree he do what you did – what you instructed or requested, if he did not agree, he could refuse – where is it?  Not in the record.

A.        I said to him that if he understood, then he copy it.

Q.       So you mean that by asking him whether he understood, you – your meaning is actually ‘You have a choice not to do it.’

A.        Yes.”

8. In the circumstances, I do think there is a need to explain in greater detail why the verbal admission and its post-record should be adjudged admissible.

9. On this, I refer to Bruce, ‘Criminal Procedure’, Part VII [102] where it is said in footnote 5 :

“R v Tsang Kin-ming Cr App 214/92 suggests there is no obligation other than to say that the judge found the statement to be voluntary where the court in R v Nguyen Van Truoung & Vu Duc Hoa Mag App 1443/90 suggests that fuller reasons should be given.  The latter approach appears to be the better practice.”

10. As it is, both the magistrate’s ruling on the special issue (p.90 of the appeal bundle) and the subsequent statement of findings (p.8 of the same) are depletive of any such reasons, notwithstanding the fact that these points were central to the defence objection to admissibility.

11. Turning to Ground 3, I admit the affirmation mentioned therein as fresh evidence.  It is an affirmation by a staff member of the appellant’s solicitors trying to show by photographs the limited vision that PWs 1 and 2 must have hiding behind the door in the stairwell.  In ways far exceeding the photographs exhibited at trial, they make it very clear that what PW1 said in part of his cross-examination is incorrect (p.121 of the appeal bundle) :

“Q.       Now you told us you were the one who spotted the defendant coming from the lift lobby towards the – his residence, walking through the – that particular corridor, right?

Yes.

….

Q.        And the corridor is not a very big corridor, right?  Quite a small confined space, do you agree?

A.        Actually with the door opened – ajar leaving the gap like that, through the gap, we could see a large stretch of the corridor.  Although we could not see to the end of the corridor, but we could see up to the point of the lift lobby which is only a few steps away.  So after I saw that the defendant – when I first found the defendant, that is why I could see him walking towards us.”

12. The fact is, nobody standing behind that door could have seen the lift lobby which was many many times more than a few steps away.  And the ability of PW1 to see what he claimed was a major trial point no doubt because the defence was one of frame-up rendering PW1’s credibility crucial.

13. As it is, there was no reference to such issue by the magistrate except for that single sentence (“the witnesses were cross-examined extensively on their ability to see through this crack”) in his statement of findings (see the extract in paragraph 2 above).  Clearly this falls short of what is necessary.

14. In my judgment, there is nothing inherently wrong or improbable with the verdict in this case.  Given the above shortcomings, however, it has become unsustainable.  I allow the appeal.