HKSAR v. LAM YUK WAH

CACC 496/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 496 OF 1997

(ON APPEAL FROM HCC 61 OF 1997)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant was convicted following trial before Deputy Judge Jackson and a jury in the Court of First Instance on two counts of trafficking in a dangerous drug contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134). He was charged originally on three counts and convicted on the first and third counts. The first being that on 4 November 1996 on board a vehicle Registration Mark FF 4886 outside No. 78 San Wai Tsuen, Lung Yuk Tau, Fanling, New Territories, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 3,484.92 grammes of a mixture containing 3,027.22 grammes of heroin hydrochloride. The third count being that on the same day, 4 November 1996 at the 2nd Floor, No. 3, Lane 8, Mun Hau Tsuen, Sheung Shui Wai, New Territories, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely 208.06 grammes of a mixture containing 165.11 grammes of heroin hydrochloride. He was sentenced to terms of imprisonment of 25 years and 10 years to run concurrently. He now seeks leave to appeal out of time against conviction. His application was made 21/2 months out of time. He gives reasons, not in his notice of application but elsewhere, which have no substance in them.

2. However, we proceeded to consider his grounds on a de bene esse basis. These consist of broadly three grounds which are advanced on his behalf by Mr Jerome Matthews who did not appear for him below. The first point taken by Mr Matthews is concerned with the burden and standard of proof on the third direction given by the judge. The judge gave directions in the context of each of the three counts. Mr Matthews concedes that in the context of the first two, the directions were impeccable, but questions the third direction which was in these terms:

"I say again it's for the prosecution to prove its case. The defendant does not have to prove his innocence. It's a matter for you as judges of the facts, to determine where the truth lies on all of the evidence placed before you. You've seen and heard the Customs Officers against whom the allegation of fabrication has been made. Do you think that they have fabricated the evidence, or that they might have done? Again, members of the jury, that is a matter for you and for your deliberation."

The direction, Mr Matthews complains, is tantamount to inviting the jury to decide simply by choosing the version of evidence they preferred, that of the Customs and Excise Officers or the applicant. He seeks to rely in terms of legal authority upon the judgment of Brennan J in Liberato and Others v The Queen (1985) 159 CLR 507 at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence."

Mr Matthews says that he does not seek to elevate that to a principle but he suggests that it lends support to his submission that the judge having earlier given directions on the burden of proof, that it has to be established beyond reasonable doubt, omitted to do so in the foregoing passage of his summing-up.

3. In fact, looking at that passage it can be seen that the judge did state that it was "for the prosecution to prove its case". Looking at the summing-up as a whole there is plainly nothing in this submission. The judge carefully identified the points for decision and helpfully concentrated upon them. We do not accept that the jury may well have been confused by the direction, nor in the context of the entire summing-up, that it was flawed.

4. Mr Matthews had another aspect to his submission which pursued the second perfected ground of appeal. He submitted that the judge failed to consider the aspect of voluntariness in relation to the alleged oral admissions made by the applicant at the time of his arrest.

5. It has to be explained that the applicant was arrested about 6 o'clock in the morning. Certain oral admissions were made by him at the site of the arrest and later, he made a post-recorded statement at about 7 o'clock and yet another about 8 o'clock that evening.

6. Mr Matthews first of all submits that admitting the latter the judge did not consider inducements made to the applicant earlier, and therefore, ultimately that the convictions are unsafe and unsatisfactory. The burden of his complaint stems from evidence that the applicant had been handcuffed. Indeed he had, having been detained at a roadside and outside the car with only another officer present. He submits also that the applicant was hooded. That, it has to be said, was done because there were press photographers present. And third, that he had his medication for asthma taken from him and, according to his own evidence, not given to him when he had an asthma attack, because, the officers told him, he was uncooperative.

7. Mr Matthews makes that submission in the context of the recent case of Thongjai and anor v R [1997]2 HKC 109. He referred to the second paragraph of what was held which in the context of this case can be accepted as an accurate summary:

"(2) An accused person could challenge an oral admission both on the basis that he never made it and that he was ill-treated by police before or at the time of the alleged admission. The two were not mutually exclusive. The first issue, which was for the judge to decide, was whether on the assumption the alleged admission was made it was inadmissible as being involuntary. The second issue, which was for the jury if the judge ruled the alleged admission was admissible, was whether the admission was made. Ajodha v The State [1982] AC 204 considered. Mapherson v The Queen (1981) 147 CLR 512 adopted (at 116E-F)."

8. Counsel who appeared for the applicant below expressly withdrew from the judge, indeed disavowed any submission that the verbal admission was made involuntarily. It was in fact the judge who raised the question by asking "What about the alleged verbals and assaults? Are those objected to?" Counsel for the defence responded "Well, my Lord, the defendant would in due course say that - I mean, they never happened. They were written down. They're concoctions. So it follows that they wouldn't in turn be objected to. Unless I can assist the court or my friend further, those are therefore the grounds."

9. Mr Matthews accepts that given the language he used, the judge must have been aware of Thongjai whereas counsel for the defence was probably not. However that may be, in giving his ruling at the end of the voir dire, the judge said this:

"The prosecution has satisfied me beyond a reasonable doubt the document ... is voluntary in the sense that the law requires of it and it follows that I rule the document is admissible into evidence."

It seems to us that phrasing his ruling in that way indicates that the judge did not lose sight of the Thongjai point, which Mr Matthews conceded he must have been aware of, and that he took it into account in making his ruling. We are satisfied, therefore, that also in this respect there is nothing in Mr Matthews's submission.

10. We turn then to Mr Matthews's submission on the additional perfected ground of appeal. This was framed in the following terms:

"The Learned Trial Judge erred in admitting into evidence a record of interview of the Applicant, namely Exhibit P61 for the following reasons:

i) The said record of interview contained no relevant admissions, being merely a refusal to answer questions;

ii) The said interview should have been disallowed on the basis that it was conducted after the investigating authorities had sufficient evidence with which to charge the Applicant and was therefore conducted in breach of the administrative guidelines for the questioning of suspects.

Alternatively, if the Learned Trial Judge was correct in admitting the said record of interview into evidence he erred in that he failed to give the jury a full direction on the consideration they should have given to same, particularly in the light of alleged oral admissions previously made to the investigating authorities and recorded in Prosecution Exhibit P62."

11. For the respondent, Mr Lo's response in his written submissions was to point to the fact that far from the record of interview having contained no admissions, it did in fact contain material admissions. These were as to who was in the car at the time of arrest, and more importantly that the applicant was the only person who possessed the key to it. Also, there were admissions as to who lived in the house, No.3, in which the drugs, the subject of the third count, were found. These were his father and younger brother.

12. In the face of those matters Mr Matthews conceded that in fact the record of interview did contain relevant matters although he maintained that the record of interview was largely, and not merely, a refusal to answer questions. The fact remains that the prosecution were entitled upon that basis to put in the statement.

13. Turning to the second reason, the administrative guidelines relied upon are contained in paragraph (d) of the second page of Appendix I of the Rules and Directions issued by the Secretary for Security. It is to the following effect.

"(d) That when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence;"

Mr Matthews points out that the statement was taken about 8 o'clock in the evening of 4 November 1996, the day of the arrest which took place at about 6.20 am. He says, therefore, that the officers had enough to charge the applicant that morning. In failing to do so, they breached the guidelines.

14. Even if that were so, the judge was entitled to take into account all the relevant matters in the context of deciding whether the statement was voluntary or not, and whether it should be admissible. There is no reason to suggest that he did not do so in giving his ruling. Significantly, the defence did not object to it.

15. Mr Matthews also adds to his submission the alternative matter that even if the judge was correct in admitting the record of interview into evidence, he erred in not giving the jury a full direction on the consideration they should have given to Exhibit P61. This relates in effect to the same matter we have dealt with in relation to the second perfected ground of appeal, i.e. the oral admissions and we answer it in a similar way. We can see no fault in the relevant directions.

16. In the result, we find nothing in any of the grounds which we are satisfied have no merit.

17. We accordingly decline to extend time and refuse leave to appeal.