HKSAR v. CHAN CHAU LAM

[English Translation - 英譯本]
CACC 416/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 416 OF 2011

(ON APPEAL FROM DCCC NO. 584 of 2011)

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Between

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REASONS FOR JUDGMENT

Hon Yeung Acting CJHC (giving Reasons for Judgment of the Court):

Introduction

1.  The applicant (Chan Chau Lam) was charged with one count of unlawful trafficking in 21.52 g of powder containing 17.02 g of ketamine (commonly called “K chai”).  He pleaded not guilty and was on trial before District Judge Stanley Chan (the trial judge).

2.  On 3 October 2011, the trial judge convicted the applicant of the charge and sentenced him to 4 years’ imprisonment.

3.  The applicant felt aggrieved by the conviction and sentence, and, represented by Mr Ken Ng of counsel, he sought leave from this court to appeal against conviction and/or sentence.  On 25 October 2012, the applicant’s legal representatives informed the court that the applicant abandoned the application for leave to appeal against sentence, which was dismissed accordingly.  This court was only required to deal with his application for leave to appeal against conviction.  At the end of the hearing, this court granted his application for leave to appeal against conviction and treated it as the appeal proper.  We allowed the appeal, quashed the conviction and set aside the sentence. However, the case was ordered to be remitted to the District Court for a retrial on the same charge before another judge.  These are our reasons.

Prosecution case

4.  The scene of the crime was a residential unit in Yue Tai House, Yue Wan Estate, Chai Wan Road (the Residence).  On 7 April 2011, the police conducted an anti-narcotic operation in the vicinity of the Residence.  At around 8 pm, the applicant appeared outside the Residence.  He took out the key(s), and when he was just about to open the metal gate of that Residence, he was stopped by the police.  When the police showed him the search warrant, he became agitated and tried to run away but was subdued.  The applicant shouted loudly,“Release me, the police are hitting people,” and kept on struggling.  At that time, a woman inside the Residence opened the wooden door and asked what the matter was.  The applicant said loudly, “Mom, don’t open the door, these are the cops.”

5.  After that, the police searched and found on the applicant’s person two plastic bags containing dangerous drug and a transparent plastic bag containing 100 resealable plastic bags.  Under caution, the applicant admitted that the dangerous drug inside the two plastic bags was “K chai”, but when being asked why there were so many plastic bags, he did not respond.  Subsequently, the applicant further said under caution, “The two packets of ‘K chai’” are for my own consumption, give me a way to go.”

6.  Later, after the applicant’s mother had opened the metal gate of the Residence, the police went in to search but no contraband was found.

7.  After taking the applicant back to Chai Wan Police Station, the police showed him a post-record of what had happened at the scene for him to read it and requested him to copy a declaration.  They gave him a copy and then conducted a video interview with him.  After the interview, the police gave the applicant a DVD containing the record of interview.  During the interview, the applicant reiterated that the dangerous drug was for his own consumption and the plastic bags on his person were for bringing drugs outside more conveniently.  He indicated that he had bought the “K chai” in question for $1,800, and the quantity could last him for the best part of a month.  However, he refused to disclose the identity of the person(s) who had provided him the dangerous drug.

8.  After the interview, a lawyer surnamed Wan visited the applicant and was allowed to meet him alone.  The police also gave the applicant a DVD containing the record of the interview.

9.  A number of police officers said in their testimonies that when the applicant was intercepted, he did struggle and shout loudly, “The cops are hitting people,” and told his mother not to open the door of the Residence.  They also confirmed that under caution, the applicant had said, “The two packets of ‘K chai’ are for my own consumption, give me a way to go.”  The police officers who had taken part in interviewing the applicant all claimed that the applicant was voluntary in having the video interview.

The applicant’s stance and evidence in relation to the confession

10.  On the special issue, the applicant said in his testimony that the police had framed him up.  He said the police had not found any dangerous drug whatsoever upon searching his person and they even treated him with violence.  The applicant said that after subduing him with violence, the police just took out the key(s) from his trousers pocket and forced their way into the Residence.

11.  The applicant also said that the police, having purported to have found some plastic bags and white-coloured powder inside the Residence, demanded that he should admit those things had been searched out from his person by them lest his family members be “disturbed”. The applicant said that it was under the above circumstances that he agreed to cooperate with the police.  The applicant also said that he had not read the content of the post-record but he did, as instructed by the police, copy the post-record declaration and sign.

12.  The applicant said firmly that when the police demanded to conduct a video interview with him, they did indicate to him that he was only required to answer a few simple questions and then he could reply by saying “not clear”, “don’t know”, “don’t recall”, or “not willing to answer” or not giving any response, and the interview would end.  The applicant said firmly that he himself had not made any confession.

13.  The applicant called his mother, Madam Leung, to testify.  Madam Leung also said that the police had threatened her, telling her not to obstruct them and to open the main door of the Residence, or otherwise, they would “arrest and take her back to the police station and seal off her flat”.

The trial judge’s ruling on special issue

14.  After hearing the evidence and submissions of both parties on the special issue, the trial judge made the following ruling orally:

“I have thoroughly examined the testimonies of various prosecution witnesses and also considered the testimonies of the defendant and his mother on the special issue in detail. I have also examined the note-book in question, the transcript and document(s) related to the video interview. I have also listened to the submissions given by both sides on the special issue.

I am satisfied of the evidence of the prosecution witnesses, and believe that the verbal confession was made at the scene in the circumstances as described by the prosecution witnesses and that this confession was made under caution by the defendant voluntarily.  I find that the words on page 37 of the note-book came into being in Room 620 where the defendant did sign for confirmation.  At Chaiwan Police Station, the defendant also wrote down the declaration for the post-recorded statement on the note-book and signed to confirm.  I also believe the prosecution witnesses regarding the circumstances under which the notice to persons in custody was issued, and that the defendant was voluntary in having the video interview.  I find that the prosecution has proved beyond all reasonable doubt the existence and voluntariness of the confession.” (emphasis added)

15.  In the ruling on special issue stated in his reasons for verdict, the trial judge found that the police officers’ testimonies were honest and reliable.  In his view, the police officers would not, in relation to the finding of the dangerous drug, complicate the matter or make up a story to frame up the applicant.

16.  The trial judge did believe that, the applicant had said under caution, “These two packets of ‘K chai’ are for my own consumption, give me a way to go, okay?”

17.  The trial judge said that in the content of the post-record in question, the most important confession was that the applicant had said, “The ‘K chai’ are for my own consumption,” and he had the chance to read the content of the post-record before appending his signature and writing down the declaration.  The trial judge emphasized that the applicant not only raised no objection to the content of the post-record, but made the same confession in the video interview conducted immediately afterwards.

18.  The trial judge did not accept the applicant’s grounds of objection in respect of the confession and the record of interview.

19.  The trial judge stated clearly that he had adopted the double barrel approach in considering the whole case, and ruled that the applicant had in fact made the confession which was voluntary and the content was true.

20.  Therefore, the trial judge ruled that the post-record and the record of video interview should be admissible with full weight attached.

The applicant’s defence

21.  The applicant admitted that the dangerous drug in question was in his possession, but said that the drug had been found from the mattress on the bed in his room inside the Residence instead of on his person.  The applicant denied having made any confession, but in respect of the general issue, he did not give evidence to defend himself or call any witness.

Verdict given by the trial judge

22.  The trial judge rejected the applicant’s allegations that the dangerous drug in question had been found from the mattress in the applicant’s room inside the Residence and the plastic bags from the paper bag hung on the wall in the room.

23.  The trial judge reiterated that the applicant had not only confessed to the police officer who had arrested him, but also made the same confession in the video interview.  According to the post-record and the record of interview, the applicant admitted in clear terms that the “K chai” had been searched out from his person and was for his own consumption, and the plastic bags were for bringing small amount of dangerous drug outside for consumption more conveniently.  The applicant did not explain the source of the “K chai” but said that it was worth $1,800 and the quantity could last him for the best part of a month.

24.  The trial judge emphasized that at the material time the applicant was returning home instead of going out.  He also stressed that the applicant had divided the drug into two packets and was at the same time carrying over 100 plastic bags with him.

25.  The trial judge refused to accept that the dangerous drug in the applicant’s possession was for his own consumption and drew the inference that he had possessed the drugs for the purpose of unlawful trafficking.  Therefore, the applicant was convicted of the offence of unlawful trafficking in a dangerous drug.

Grounds of appeal

26.  Mr Ken Ng, counsel for the applicant, advanced a number of grounds in support of the appeal.  He submitted that the trial judge, in dealing with the voluntariness of the applicant’s confession, should not have considered whether the confession had in fact been made, and instead should, on the presumption that such confession had been made, determine whether it had been made voluntarily and whether it should be admissible.

27.  Mr Ng contended that the trial judge, before hearing all the evidence, including the evidence that the defence would or would possibly put forward, had already found that the applicant’s confession did “exist” and that the content of the confession was true.  In doing so, he has been unfair to the applicant and violated the principle laid down in Thongjai & Another v The Queen [1997] HKLR 678.

28.  It was submitted that when the trial judge was dealing with the voluntariness of the confession made by the applicant, he erred in also dealing with the truthfulness of its content at the same time.

29.  Mr Ng also pointed out when the applicant indicated he admitted possession of dangerous drug, the trial judge said twice, “for rebuttal,” showing that the trial judge thought the applicant bore the burden to prove that he had not “trafficked in dangerous drug”, which contravened the principle of requiring the prosecution to prove the guilt of the applicant.

30.  In his written submission, Mr Ng asserted that during the video interview, the applicant had expressed clearly on a number of occasions that he did not want to answer questions but the police persisted in questioning him.  It was contended that the police conduct had infringed the applicant’s right to remain silent, and therefore the record of interview in question should not be admitted as evidence.

31.  Mr Ng submitted that the trial judge should not have rejected the applicant’s explanation of having the dangerous drug in question for his own consumption.  It was contended that basing on the facts of the case, the inference of “trafficking” drawn by the trial judge was not the only reasonable inference.

32.  Mr Ng said that the trial judge, in considering whether the applicant had “trafficked in a dangerous drug”, had taken into account some unproved matters, including that the dangerous drug and the empty plastic bags were found inside the applicant’s room.  Mr Ng asserted that those were merely suggestions put forward by the defence in cross-examining prosecution witnesses and they were unproved, and hence the trial judge should not have based on them to draw any inference.

Discussion

33.  The prosecution case against the applicant was extraordinarily simple.  When the applicant was intercepted by the police near his residence, he struggled and tried to flee.  After subduing the applicant, the police searched him and found on his person the dangerous drug in question and a lot of plastic bags.  Under caution, the applicant admitted that the dangerous drug was “K chai”, but indicated that the drug was for his own consumption, and at the same time asked the police to “give him a way to go”.

34.  The applicant copied the declaration onto the post-record of what had happened at the scene, and after that made the same confession in a video interview, and further indicated that he had bought the “K chai” in question for $1,800, which could last him for the best part of a month.  The applicant also indicated that the plastic bags were used for bringing drug on his person more conveniently.

35.  The applicant objected to the prosecution producing his confession as evidence on the ground that it was not made voluntarily.  The trial judge, after hearing evidence from both sides, ruled on the special issue.  In doing so, he stated that it was after he had thoroughly considered the testimonies of witnesses of both sides and examined the relevant documents that he found the applicant’s confession had been made voluntarily.  In making such ruling, the trial judge also found that the prosecution had proved beyond all reasonable doubt the “existence” and voluntariness of the confession.

36.  In his written reasons for verdict, on the special issue, the trial judge found that the content of the applicant’s confession was true.

37.  At trial, it was by consent that the special issue was to be dealt with by way of the alternative procedure.  The trial judge also stated clearly that he had adopted the double barrel approach in considering the applicant’s confession.  By that time, both parties had already closed their respective cases on the special issue as well as the general issue.  At this stage, it was not unjustifiable for the trial judge to set out his reasons for finding the applicant’s confession voluntary and at the same time find that such confession was true.  However, we cannot ignore that when the trial judge was giving his verbal ruling on the special issue, he already stated clearly that he accepted the “existence” and voluntariness of the applicant’s confession.

38.  In deciding whether an accused has made a confession voluntarily, the court only needs to deal with the voluntariness of such confession but not whether such confession was in fact made or whether the content is true.  The above point of law has been well established in many precedents. (See cases such as Thongjai, HKSAR v Chiu Kin Wah and Another CACC 244/2002 and HKSAR v Wong Kam-chan & Another CACC 142/2011)

39.  In this case, the trial judge has obviously violated the principles laid down in cases such as Thongjai. He, in determining whether the applicant had made the confession voluntarily, also ruled on whether such confession in fact “existed” and whether its content was true.  Mr Ira Lui representing the respondent also agreed that it was not safe or satisfactory for the trial judge to handle the matter in such way.

40.  This court reiterates that when a District Judge deals with the voluntariness of an accused’s confession, the judge should, on the assumption that the alleged confession was made, after hearing the evidence and submissions made by both sides on the special issue, only need to determine if the confession in question was made by the accused voluntarily, and should not at the same time determine if such confession in fact exists and if the content is true.  The questions of whether the confession was in fact made and whether its content is true should not be determined until both sides have closed their respective cases and finished their submissions on the charge.  The presiding judge needs to make it clear that the above decisions are made at different stages, and the trial judge should have avoided using what he called the double barrel approach for the avoidance of misunderstanding.

41.  Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant was first based on the conversation between the trial judge and him when the applicant pleaded to the charge, which was as follows:

“ Court Interpreter: Do you plead guilty or not guilty?

Accused: Not guilty, but I admit possession.

Mr Ng: Yes, this is consistent with my instruction, Your Honour.

Court: Please speak up and say that once again.

Accused: Deny trafficking and I admit possession.

Court: Speak up.

Accused: I deny trafficking, but I admit possession.

Court: You admit possession, i.e. for rebuttal, this time?

Mr Ng: As to the circumstances of the possession, they are different from the facts -- alleged by the prosecution. I don’t know if the prosecution would still reply on the voir dire -- namely the statement, that is we would say that the drug…

Court: This is not what the court has to deal with now, is it? Now, what the court has to know is whether the defendant pleads guilty or not guilty to the charge of trafficking in a dangerous drug.

Mr Ng: Right, he pleads not guilty.

Court: In that case, the court will treat it as a plea of not guilty to the charge of trafficking in a dangerous drug, that is most correct, isn’t it?

Mr Ng: Right, correct, yes.

Court: That is a plea of not guilty, is that right?

Accused:  Right. ”

42.  When counsel for the applicant made the final submission, the trial judge once again said, “What you admit is very often referred by us as so-called for rebuttal… … the defendant admits possession, and the prosecution does not accept such confession….”

43.  When the trial judge said that the applicant “admitted possession, i.e. for rebuttal” and “so-called for rebuttal”, he might possibly only refer to the applicant’s approach at that time, namely admitting possession of the drug but denying the allegation of “trafficking”. However, this court cannot ignore that previously there was a presumption in the Dangerous Drug Ordinance, namely when an accused was in possession of a dangerous drug exceeding a certain quantity, the law would presume that he was unlawful trafficking in the drug, and the reversed onus of proof would be imposed on the accused who had to prove he was not “trafficking in the drug” so that he could be acquitted of the offence of “trafficking in a dangerous drug”.This was generally described with the technical legal jargon “rebuttal”.  The above presumption has been repealed because of contravention of the Hong Kong Bill of Rights Ordinance, and hence the jargon “rebuttal” and the concept developed therefrom no longer exists, and it is not appropriate to refer to it in cases of “trafficking in a dangerous drug”.  In our view, it is inappropriate for the trial judge to use the jargon “rebuttal” twice in dealing with the case because the term would lead to misunderstanding and unnecessary dispute.  However, we have to point out that the trial judge had in his reasons for verdict stated clearly that the applicant bore no onus of proof, and that the court would not draw any inference unfavourable to him because he had elected not to give evidence.

44.  We do not accept Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant.

45.  We have to point out that Mr Ng also represented the applicant at the trial.  Thus when the trial judge said “rebuttal”, if he thought that the judge might be wrong on the onus of proof, he should have raised it to the judge immediately instead of using such mistake in support of his application for leave to appeal.

46.  In the video interview, the police did make a post-record of the course of the applicant’s arrest, and the applicant indicated that he understood and agreed to the content of such post-record.  The police also issued a “notice to persons in police custody” to the applicant, and the applicant was clear of and understood the content of the notice.

47.  Having been cautioned once again by the police, the applicant indicated that he understood and did not need the presence of a lawyer in answering questions asked by the police.  He has answered some of the questions, but for some, he indicated that he did not want to answer, and for certain questions, he replied that he did not remember or was not clear.

48.  It is obvious that the applicant has exercised his right and responded to the police questions in the way that he considered appropriate.  The applicant’s right to remain silent has not been infringed.  The ground of appeal suggesting that the applicant’s right to remain silent has been infringed is not accepted.

49.  The trial judge rejected the applicant’s explanation that the drug and the plastic bags had in fact been found in his room.  In his reasons for verdict, he stated that “even if the drug and the empty plastic bags were found inside the defendant’s room, the court could still infer that the drug in question might possibly be used for the purpose of trafficking”.  The trial judge made an assumption which was not necessary and should not have been made.  However, it was not based on such an assumption that the trial judge convicted the applicant and the assumption had no bearing on whether the conviction was safe or satisfactory.  Therefore, the ground of appeal put forward by Mr Ng in this regard is not accepted.

50.  However, the trial judge has erred in dealing with the applicant’s confession.  If there was no such confession and the applicant’s claim of the drug having been searched out from his home was or might be true, then the finding that the applicant “trafficked in the drug” was not necessarily the only reasonable inference to be drawn.

51.  In our view, in the above circumstances, the verdict of finding the applicant guilty of “trafficking in a dangerous drug” was unsafe and unsatisfactory.  Therefore we grant the applicant’s application for leave to appeal against conviction and treat it as the appeal proper.  The appeal is allowed.  Having regard to the background and the evidence in the case, we find that a retrial is necessary.  Therefore, the applicant’s conviction is quashed, and we order the case to be remitted to the District Court for a retrial on the same charge before another judge.

52.  Having listened to the submissions from both sides, we order that the prosecution do pay the applicant costs of the application for leave to appeal.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P.Y. Lo, Barrister-at-law.