HKSAR v. KWAN CHAK SING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.457
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one count of trafficking in a dangerous drug. It was alleged that on 20th November 1996, at Kowloon City Pier and Room 2611 Man Chak House, Hing Man Estate, Chai Wan in Hong Kong, he had unlawfully trafficked in a dangerous drug, namely 929.65 grammes of a crystalline solid containing 900.17 grammes of methamphetamine hydrochloride. He pleaded not guilty and was tried before Deputy Judge Gill and a jury and found guilty after trial. He was sentenced to imprisonment for 18 years and he now seeks leave to appeal against the conviction.

2. It was the prosecution case that on 20th November 1996, a group of police officers led by Chief Inspector Tang and Inspector Cheung, armed with a search warrant, carried out a raid on premises at 2611 Man Chak House, Hing Man Estate. Entry, although authorized by a search warrant, was initially gained under the pretence that Inspector Wong and Sgt. 4835 were members of the housing estate management. Room 2611 consisted of a main room of modest size, off which there is a lavatory, a small kitchen and a balcony. The applicant and his elder sister Kwan Siu-ping ("Miss Kwan") were the sole occupants. At the time of the raid, they were sitting or standing in the sitting room. Miss Kwan, when invited to explain their presence, said that they were looking after the premises while the tenant was away on the Mainland. Instructions were given to PCs2014 and 18975 to search the premises. A cursory search was made of the applicant and Miss Kwan but their clothing was not tampered with and the search took place in the main room in full view of those present. The premises were then searched. PC2014 found a KPS bag on the floor near the bunk bed, which contained 13 plastic packets, each containing a substance suspected to be Ice. When asked what the substance was, both the applicant and Miss Kwan remained silent. WPC18975 found a drawer in a cabinet was locked. When the applicant and Miss Kwan were asked to furnish the keys to the drawer they remained silent. PC18975 found a bunch of keys from Miss Kwan's handbag but none of them fitted the lock and PC2014 then retrieved a bunch of keys (Exh.6) from the pocket of the applicant, one of which did unlock the drawer. It is to be noted that there was no evidence from any prosecution witnesses that any of the keys from this bunch was a key to the applicant's home. Inside the drawer a clear plastic bag was found containing a further 12 bags of suspected Ice. When the applicant was asked what it was, he gave no reply. Also found in the drawer was a Companies Registry document in the applicant's name and a China Re-entry Permit in Miss Kwan's name. PC2014 was instructed to arrest the applicant. He did so and administered a caution, to which the applicant responded "Sir, the stuff is mine. It has nothing to do with my elder sister." The PC was then instructed to post-record the admission and to interview the applicant. He took him to the balcony and post-recorded the circumstances of the arrest and the applicant's response and invited him to sign which he did. He then put questions to the applicant, the answers to which he wrote himself. After the statement was concluded, he signed it and certified that it was true. In this document, the applicant admitted that the drugs were handed to him by a Mainland Chinese crew member of a ship at Kowloon City Pier; that he was at Room 2611 because his friend Fei Chun had left two keys with him some two months earlier; that they were for the front door and for the drawer; that he had brought the drugs to Room 2611 for storage pending outward delivery, in respect of which he was awaiting instructions; that he had placed the drugs on the floor and in the drawer and that neither Fei Chun nor his sister were aware of what he was doing; that toy money boxes which had been found in the flat were to be used to store the drugs when it was to be handed on; that his sister did have a key to the premises but it was only so that she could use it for resting and that he was the only holder of a key to the drawer. This document was Exh.P27.

3. On the following day in the police station the applicant made a further cautioned statement (Exh.P28), in which he admitted that he had arranged to pick up the drugs about a week before by way of a telephone call with the mainland Chinese in Guangzhou named Ah Lok, and that it was shipped and delivered by Ah Lok's friend; that payment terms were agreed to be on credit and that the amount was to be fixed when the on-sale price was known; that the toy money boxes were bought about a week before; that he had been given the keys to room 2611 and the locked drawer about a month before; that Fei Chun had returned to the Mainland and that his elder sister had a key in order to clean the place for him when he was away. In this statement he said that the pickup was to be at Kowloon Bay and not, as he had said in Exh.P27, at Kowloon City Pier.

4. Miss Kwan was arrested and charged but was later released. A tenancy agreement was found on the premises which stated that Leung Chun-wing was the registered tenant. The applicant's evidence established that Leung Chun-wing was Fei Chun who was also at times referred to as Fat Chun.

5. The statements of the applicant were admitted after a voir dire hearing. The judge gave a careful, reasoned judgment when admitting them. Originally Ground 3 of this appeal was that the judge had erred when he admitted those documents into evidence. In the outcome, this ground was not pursued.

6. The applicant gave evidence in the trial proper in which he said that he was a visitor by chance to the premises when the raid took place; that he did not have and had never had keys to gain entry to the premises or to the drawer; that he knew nothing about the drugs; that he had been forced to admit and to sign the two statements and had done so to safeguard his sister whom he had been told would otherwise be apprehended and implicated; that he worked for his father in his toy factory; that on the day of his arrest, his friend Leung Chun-wing, whose nick-name was Fei Chun, accompanied him to work. His evidence in this regard was: "Fat Chun (Fei Chun) said that seeing that he had nothing to do at home he suggested to go with me to the company first." He said that he and Fei Chun had lunched with his brother and another friend and that after lunch Fei Chun went off to China and that later in the afternoon Miss Kwan, the sister who had been with him at the time of arrest, said that she had to meet the younger sister at Fei Chun's house at Room 2611 and they then went there to do so; that Miss Kwan had a key as she had an arrangement with Fei Chun that she would go to the room to tidy up during his visits to China; that this key was used to gain access to the room and that, although he had previously visited the room, he had no key nor did he have any key to anything inside the room; that after the police arrived no keys were found upon him and that he had denied having any knowledge of what was in the KPS bag and was then handcuffed and told that if he did not admit his sister would be "done in"; that he heard sounds coming from the lavatory which indicated that his sister was being assaulted and that shortly thereafter keys (Exh.P6) were found in another cabinet in the premises not from his person and that one of these opened the drawer in which the drugs were found. In his evidence in chief, he made no mention of the fact that one of the keys was the key to the door of his home. This is not surprising given that there had been no evidence from the prosecution to that effect. The company's office document which was found in the drawer he said he had given to Fei Chun for safe keeping some months before. He said he was told what to write in Exh.P27 and was told to sign and did so to protect his sister from being implicated. He said that the same sort of procedure was followed when Exh.P28 was taken.

7. Miss Kwan gave evidence which was in accord with that given by her brother, and the younger sister, Miss Kwan Siu Mui, gave evidence saying that she had an arrangement to meet at Room 2611 on the day in question and that she did arrive there and was then searched. She said her brother was in the vicinity of the balcony and that she heard police officers using foul language and threats and saw them displaying an aggressive demeanour.

It was argued by Mr. Callaghan in the first ground of appeal that:

"There was a material irregularity in the use by the prosecution of a document in cross-examination of the accused; the said document not having been disclosed to the defence as 'unused material' prior to the commencement of the trial."

8. To understand this ground, it must be put in the context of the evidence. It will be remembered that in his first statement, Exh.P27, he had said that about two months prior to the date of arrest Fei Chun had given him the keys to the front door and the drawer but he had said nothing about his having given Fei Chun any keys to his premises.

9. In his second statement (Exh.P28), he had said that he had been given the keys to the room and to the drawer about a month before and again said nothing about giving any keys to Fei Chun. In his evidence in chief he made no mention of having given any key to Fei Chun.

10. In cross-examination, he said that the key to the main door of his home had been given by his elder sister to Fei Chun so that he could come and go as he liked as he was doing decorations.

11. The matter of the home key having been raised in cross-examination, Mr. Callaghan dealt further with it in re-examination as follows:

"Q. Also in your evidence you were asked a lot of questions about the key to your home.

A. Yes.

Q. You told us that when you left your flat on the 20th of November to go to your office, the only key you had was the single key to the motor bike, is that right?

A. Right.

Q. Why did you only take that key with you when you left your home?

A. I would go to China, and key was given to Fat Chun for decoration work.

Q. When you say you would go to China, when were you going to China?

A. The plan was about 6:00 p.m. on the 20th of November on that day.

Q. You were going to China.

A. Yes.

Q. What was the purpose of the key you had?

A. For the motor bike in China.

Q. Whose motor bike is that?

A. Mine.

Q. Where was your house key?

A. With Fat Chun.

Q. How did you normally keep your house key? Did you keep it as a single key, or did you have it on a bunch or a key ring, or how did you do it?

A. Kept together with a bunch of keys.

Q. When you left the house that day, where was that bunch of keys?

A. At home.

Q. Can you tell me, if you are able, what keys were on that bunch of keys?

A. Key to the company.

Q. Any others?

A. Key to the company in China; key to the quarter in China.

Q. What quarters are you referring to?

A. Quarters provided by the company to me.

Q. Your own house key had been given to Fei Chun as at the 20th of November.

A. Yes.

Q. When did you give it to him?

A. When was it given to him? Well, earlier on, several days before I was in China. Well, it should be before I went to China, not on that day, it should be before I went to China. Concerning this, I need to refer to my China Re-entry Permit.

Q. Yes.

Mr. Callaghan: Might he be permitted to have a look at his China Re-entry Permit to tell us when he went o China precisely, my Lord?

Court: Yes.

Q. Tell us when you went and when you returned.

A. It's 13 November, 16 November.

Q. So you went there on 13th and returned on the 16th.

A. Yes.

Q. When did you give the key to Fei Chun?

Mr. Laskey: He said before he went to China.

Q. As in relation to those days.

A. 12 November 1996.

Q. Why did you give him the key?

A. I went to China. Every family member need to use the key to the home. Therefore I gave him my key. I went to China. There's no fixed date for my return.

Q. Why did you give him the key?

A. Because of the home decoration.

Q. When did you start?

A. Cannot remember when it started. More or less when I gave him the key.

Q. When you returned from China on the 16th, did you do anything about retrieving the key?

A. No, because the work at my home was not completed yet."

12. Here the applicant, for the first time, was saying that it was he, not his sister as he had stated in cross-examination, who had given the key to his home to Fei Chun on 12th November to allow Fei Chun to commence work "more or less" on that day, and that he had then proceeded to China. It will be remembered that in Exh.P28, the applicant had said that prior to 20th November, Fei Chun had returned to China. Not only was he now saying, for the first time, that he had given him the key to his home but that he was also able to pinpoint the date as the 12th of November 1996. Mr. Callaghan, having completed his re-examination the applicant, in answer to the judge said that he anticipated the work would be finished within 10 days and that he would recover the key after that time.

13. Mr. Callaghan was then, because of the matters raised by the judge, allowed to reopen his re-examination. The applicant then referred to a set of keys which he said he usually carried with him but which he said he had not been carrying with him when he was arrested.

14. Mr. Laskey, for the prosecution, was then allowed to further cross-examine. The applicant then said that he had been told by his sister to give a key to their home to Fei Chun either on 12th or before that date, and that it "seems that on the 12th the key was given to him". He agreed that he had given him the key so that Fei Chun could get in and out of the home to do decoration work. He said that he had gone to China alone on the 13th and agreed, after looking at his China Re-entry Permit, that he had returned alone on 16th. He agreed that the record showed that he passed Lo Wu at 14:59 on 13th and arrived back at 19:50 on 16th. He was shown immigration records which showed that Leung Chun Wing had departed from Lo Wu at 14:59 on 13th and had returned at 19:49 on 16th. He denied that he had been travelling with Fei Chun. This final cross-examination clearly cast grave doubts upon the veracity of the applicant and particularly upon his story that he had given the key to Leung Chun-wing on the 12th to allow him to start decoration work on his home.

15. Complaint is made that the failure to disclose these immigration records to the defence, although they were in possession of the prosecution before the commencement of the trial, was a material irregularity. It is the argument of Mr. Bruce, for the prosecution, that the records had been obtained as part of an overall investigation into drug trafficking, and that until the claim of the applicant made in re-examination that he had given the key to Leung Chun-wing on the 12th to allow him to commence decoration work and that he had then immediately proceeded to China, it was not considered that they had any real relevance to the prosecution. It must be remembered that the admissions of the applicant upon which the prosecution was primarily relying were that he had obtained the drugs from a seaman on the day of his arrest. The movements of Fei Chun only became a matter of significance when in re-examination the applicant positively stated that he had given the key to Fei Chun on 12th November for the purpose of doing decoration work in his home and that he had then proceeded on 13th to China. Clearly if he and Fei Chun went to China together on the 13th, this evidence was gravely suspect. There could have been no anticipation by the prosecution that this assertion would be made or that the movements of Fei Chun would be of any real significance. Prosecuting counsel, it is true, suggested to the applicant that he had gone with Fei Chun to China to get the drugs, but this matter came to light in the second cross-examination and was not the prosecution case as charged, which was based on his original admissions in Exh.P27. The applicant was charged that he had trafficked in dangerous drugs "at Kowloon City Pier and Room 2611, Man Chak House, Hing Man Estate, Chai Wan."

16. The count, as particularized, clearly related to the admissions made in Exh.P27 in which the applicant had admitted that he had received drugs from a Mainland Chinese crew member at Kowloon City Pier, and that he had taken the drugs to Room 2611 for storage. Given those particulars, we find it difficult to see how the defence could suggest that information that Fei Chun had gone to China at about the same time as the applicant on the 13th and returned at the same time on 16th November was material to the charge.

17. Lord Taylor C.J. in R. v. Keane, (1994) 1WLR 746, adopted the test propounded suggested by Jowitt J. in R. v. Melvin, (unreported) 20 Dec. 1993, when he said:

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1) to be relevant or possibly relevant to an issue in a case;

(2) to raise or possibly raise a new issue, whose existence is not apparent from the evidence the prosecution proposes to use;

(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

18. The evidence must be such as is material on a sensible appraisal by the prosecution to refer to either (1), (2) or (3) above. We do not consider that this was such evidence.

19. The second ground argued by Mr. Callaghan was that the judge "misdirected the jury that the appellant had lied to cover up his guilt. Accordingly, the direction to the jury on lies in the form it was given was a misdirection."

20. The direction which the judge gave was as follows:

"You have heard it put to him that he has lied to cover up his guilt. It is for you to decide if he or any other witness is lying. Before you give consideration to that and the consequences of your finding, I give you this direction on lies: namely, that somebody accused of a crime may resort to telling lies for a number of reasons, many of which are innocent. He may do so to bolster a weak case or because he thinks you may not believe him if he told the truth. He may lie to protect another. He may lie out of panic or confusion.

If you find that there are lies but that they are innocent subterfuge, then you should disregard them. If, however, you find that a lie is a deliberate one on some material issue to hide guilt or because of a fear of the truth, then you are entitled to take it into account, as, in that case, it amounts to evidence.

But please be aware a lie does not of itself establish guilt. Even if you decide that the defendant has lied, or others have done so on his behalf, that does not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge he faces."

21. The only basis upon which this direction is challenged is that it suggested to the jury that lies can be taken into account to prove guilt when in fact the suggested lies went only to credit and were only relied upon in that regard by the prosecution. While it may be that in some parts of his address, Mr. Laskey was suggesting that the lies went to credit, he was elsewhere clearly suggesting that they were lies told by the applicant to distance himself for the offence which were indicative of guilt. We refer to the passage at p.820 where Mr. Laskey said:

"So this is the sort of indication that it is not a put up job by the police. This is the defendant answering questions, sometimes admitting, but sometimes wholly misleading the police, lying, and in order to mislead the police to keep them from getting to Fat Chun protecting the man who does the drug dealing with him. You may think that is what really it must be, the conclusion his partner in the drug dealing, lying to protect Fat Chun." (Emphasis supplied.)

22. Again, at p.823 of the record, Mr. Laskey said:

"His account of going to China alone on the 13th, having given his key to Fat Chun. The implication, the clearest implication, Fat Chun was to stay in Hong Kong to do the decoration and the defendant goes back to China. Doesn't need his front door key because he is going to be in China. Gives it to Fat Chun and then he returns alone on the 16th. Well, I hate to use the slang expression, but that was pretty well blasted out of the water you may think, that story, when one took a look at the travel documents in relation to Fat Chun and this defendant."

23. Mr. Callaghan did not abandon this ground but, during argument, conceded that the prosecution was seeking, in some instances, to place a reliance on lies as an indication of guilt.

24. It was also submitted that the judge should have indicated specifically each lie that might have gone to establish guilt and to have given individual directions with regard thereto. We do not think this was necessary. Clearly if the jury came to the conclusion that the applicant was or might have been telling lies solely to protect his sister or any other person, then they would have followed the direction of the judge which was that they "should disregard them". We are satisfied that there is no merit in this ground.

25. Ground 3, which suggested that the judge erred when he admitted the confessional statements, was not pursued.

26. We are satisfied that the conviction was both safe and satisfactory and the application for leave to appeal against it is, therefore, dismissed.

27. Before leaving this matter, we consider it our duty to refer to the transcript of a hearing in chambers that occurred at 9:45 a.m. on 23rd June 1997, immediately before the judge heard the evidence in the voir dire. The passage reads as follows:

"9:45 a.m. Hearing in Chambers.

Present: P. Callaghan (Ivan Tang & Co.) for the Accused.

E. Laskey, on fiat, for the Crown.

Mr. Laskey: ... with Tom Gall who told me that he had had a word with you about the case. The view that he told me you had expressed, I find it entirely acceptable and sensible, and I wonder about it myself as to why we should ever include the cannabis. It's a tiny amount. The guy is being in custody. I'd like to delete it from the case altogether if you have no objection, but I have got, you know what it is in this job, we got to go back and ask for permission to do absolutely anything.

But as far as I am concerned, I would like to re-amend the indictment and I'll get it re-indicted and re-signed to take the cannabis out altogether."

28. We are concerned not only that counsel appears to have discussed this matter with another judge but also that he was then raising that discussion when endeavouring to persuade the trial judge to accept that a small amount of cannabis which had been found should not be included in the charge. This was wholly improper. Further the reference to the judge in familiar terms fell below the standard of courtesy expected of counsel. Propriety demands that counsel when referring in a hearing to a judge use accepted forms of address. We trust that this conduct was isolated and that it will not occur again.