HKSAR v. CHOW KAM KI

CACC 457/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 457 OF 1999

(ON APPEAL FROM HCCC 88/1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of trafficking in a large quantity of dangerous drugs after a trial in the High Court before Deputy Judge Louis Tong and a jury. He now seeks leave to appeal against his conviction.

2. According to the prosecution case the applicant was stopped by police officers outside 78, Tai Nan Street, Shamshuipo on 6 January 1999. He was searched and a packet of suspected dangerous drugs was found in his trousers pocket. It is alleged that the applicant said that he was selling dangerous drugs to finance his forthcoming wedding. He was taken back to a police station where a post-record was made of his admission and he answered a number of questions. The answers he gave were consistent with his guilt. He was taken back to the cubicle he occupied where a search was conducted but nothing suspicious was found.

3. A total of seven police officers gave evidence. The admissibility of his verbal admission and the subsequent cautioned statement appears to have been keenly contested. The Judge ruled the statements as being admissible as evidence.

4. The applicant gave evidence at his trial. He said that after he left his residence, he was accosted by a group of men in the street while he was on his way to the station to proceed to Guangdong. He soon realised that the men were police officers. He was searched but nothing was found on him. After a verbal exchange he was assaulted physically by one of the officers. They asked him where he lived and after he told them the party went back with him to the cubicle for it to be searched. One of the officers told him that if nothing was found he would be released.

5. While the search was being conducted one of the officers said that a packet of dangerous drugs had been found in the vicinity of the staircase. The police did not allege at that time that the packet belonged to him. Indeed it was his impression that he was not even under arrest as he had not been handcuffed. The officers did however say that he would have to go back to the police station with them to answer questions. He claimed that at the police station, he was asked to make an inculpatory statement. When he declined to do so he was subjected to a series of assaults. This included a book being put on his head and the officer beating it with handcuffs which made him dizzy and led to his vomiting. Also his scrotum was squeezed which caused him great pain. He realised that he had no alternative but to sign the document which was placed before him. A medical examination was conducted on him two days later and the doctor did not find any physical evidence consistent with the complaints being made by the applicant.

6. It will be appreciated from this short summary that what was involved in this trial was the credibility of the police officers who gave evidence and whether the applicant's evidence raised any serious doubts in the minds of the jurors.

7. In his written grounds the first complaint made by the applicant is that the interview he had when he made his cautioned statement was not videotaped. The answer to this is that there is no legal requirement for the interview to be videotaped. The Judge was satisfied at the appropriate level that the applicant's statement had been made freely and voluntarily.

8. The second ground is that:

"The exhibit of 'dangerous drugs' was not in its original form and the police did not provide the photograph of the exhibit (in its original form). In these circumstances, that was equal to an absence of exhibit. In such situation, my counsel had suggested a stay of proceedings but was rejected by the judge."

9. There is nothing in this ground. The physical aspects of the dangerous drugs seized are sufficiently dealt with in the agreed facts.

10. The complaint made here is dealt with in more detail in relation to ground five.

11. At the hearing before us the applicant abandoned ground three.

12. Ground four is that:

"In directing the jury, the learned judge used an inappropriate analogy to describe this case. This analogy sets out situations when 'denial of knowledge' can be brought out as well as situations when 'denial of knowledge can not be brought out'. However, I had all along denied that the drugs were found on me. It was not that I carried the drugs with me unknowingly. Therefore, the analogy used was prejudicial and unfair to me."

13. The analogy he referred to related to the directions the Judge gave on possession. He said that if someone left his jacket somewhere and dangerous drugs were planted in the pocket by someone else, it may be the case that the owner of the jacket may not know about the dangerous drugs and therefore not be in possession of them. The position may be different if the dangerous drugs were found in his pocket while he was wearing the jacket. This would appear to be stating the obvious. This could not have been in any way detrimental to the defence which was being advanced by the applicant. There is no merit in this ground.

14. Ground five is that:

"The police knew that the exhibit(s) would be transformed into the current state of condition after the exhibit(s) of 'drugs' was/were analysed. The police also deliberately did not produce any photo(s) as exhibit(s), but merely relied on the police to give an account on the size of the exhibit(s) of 'drugs'. Since the size as described by the police was substantially smaller than what I saw, it became impossible for me to point out clearly to the jury that the drugs could not have been found in (my) trousers pocket(s) for it was basically impossible to put such bulky pack(s) of drugs into trousers pocket(s)."

15. There is nothing in this ground. The question of the size of the packet and the capacity of the trousers worn by the applicant at the time of his arrest appears to have been ventilated in some detail at the trial. All of this evidence was before the jury.

16. Ground six is that:

"When the witness(es) was/were testifying on the record of interview, the Prosecutor kept nodding either before or after the witness(es) had finished answering questions. Eventually, the record of interview was ruled admissable (admissible). Although I brought this to the attention of (my) counsel after the trial on the record of interview, and (my) counsel had also raised this issue with the learned judge, the learned judge only asked the Prosecutor to refrain from further doing this act. This was not fair to me. It was because during the entire trial on the record of interview, the Prosecutor seemed to be giving out indication to the witness(es) as to the correctness of the answers."

17. There is no reason to believe that the trial was not properly conducted. No substantial complaint appears to have been made by the counsel who was representing the applicant.

18. The applicant raised some further matters before us. These mainly related to issues which had been ventilated in the trial below and amounted to an attempt to invite us to retry this case. He also alleged that the counsel who represented him had not followed all of his instructions. There would not appear to be any substance in the complaints he made.

19. There are no grounds to indicate that this conviction was in any way unsafe or unsatisfactory and this being the case this application is dismissed.