THE QUEEN v. CHI KA CHEUK

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REASONS FOR JUDGMENT

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Saied J. (giving the judgment of the Court):

1. On 6th May we refused the applicant leave to appeal and now give our reasons.

2. The applicant was convicted in the District Court of two offences, the first being trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, for which he was sentenced to 5 1/2 years imprisonment; the second being reckless driving contrary to section 37(1) of the Road Traffic Ordinance to which he pleaded guilty and was fined $2,000. He is now applying for leave to appeal against his conviction for the offence of trafficking.

3. The prosecution alleged that three police officers, of whom two gave evidence as PW1 and PW2, stopped a private car being driven by the applicant upon seeing it turn into a street in the opposite direction in contravention of a traffic sign. The applicant was asked to switch off the engine and to apply the handbrake but he appeared to be nervous and suddenly accelerated causing PW1 to step back to avoid the car. Both policemen chased the car until it came to a stop after crashing into a safety island. The applicant was seen alighting from the vehicle and running away. PW1 chased him followed by PW2 and at one stage PW1 lost sight of the applicant. A little later on reaching Block J of Telford Garden he found that the applicant had been intercepted by PCA 6817 (PW3). The account of the route of the chase given by his colleague PCA 4252 (PW4) differed from that of PW3. However, later PW1 looked along the route that the applicant had allegedly taken and in the lower shelf of a wooden structure in a lane he found two envelopes which it was admitted contained dangerous drugs as listed in the Government Chemist's certificate, Ex.P2. It was also an admitted fact that one of the envelopes, Ex.P4, bore a digital impression identical with the applicant's left ring finger which, it was further admitted, had been made on the envelope by the applicant. The applicant was taken to the police station and there after the envelopes were opened and their contents revealed, DSPC 9280 (PW5) arrested the applicant for possession of dangerous drugs and cautioned him. The applicant is alleged to have said, "Ah Sir, it has nothing to do with me. I was only employed for a job." Subsequently he was interviewed and two records of interview were taken from him by PW5. The trial judge ruled both of them inadmissible after holding a voir dire.

4. The applicant admitted that he ran away after his car rammed into the safety island and that he was intercepted by PW3. He alleged that he was assaulted by PW1 and at the police station was repeatedly assaulted by another police officer, DPC 12366 (PW8). He denied that PW5 had ever cautioned him and similarly he denied having ever said anything to him. Explaining his fingerprint on one of the envelopes the applicant said that before PW5 opened the envelopes he had handed them to him and he maintained that it was not until someone referred to dangerous drugs at the police station that he realised that the envelopes contained dangerous drugs.

5. In his home-made grounds for leave the applicant listed four main complaints: (i) the trial judge accepted the prosecution case despite the 'tremendous' contradictions in it which showed fabrication on the part of the police while rejecting his version which was without any contradiction; (ii) the fact that the trial judge ruled the records of interview inadmissible but still convicted him on an "involuntary" statement made at the police station showed that the trial judge was to a certain extent prejudiced against him; (iii) the trial judge had failed to consider his explanation about how his fingerprint came to be on the envelope and (iv) no contraband was found on him and the two envelopes were produced two hours after he was taken to the police station.

6. The matters raised in (i), (iii) and (iv) turned on the view the trial judge took of the credibility of the witnesses whom she had seen and heard give evidence and had had ample opportunity of watching their demeanour. The trial judge considered the issue critically and with care and accepted the prosecution witnesses as honest and reliable notwithstanding some conflicts and discrepancies in their evidence. She was entitled to that view and we see nothing in the way she had dealt with their evidence to reach that conclusion to cause us to question her decision in that regard.

7. The complaint made in (ii) is not quite correct and it seems to us that the applicant may have misunderstood the situation. The trial judge had indeed as the applicant states ruled the two records of interview that were taken from him at the police station inadmissible in evidence. In making that ruling she had taken into consideration his allegations of assault and other matters that were raised. The trial judge found that there was a gap of some five hours between the applicant's release from custody and his medical examination, and she went on to say that the medical evidence did not cause her any doubt on the truthfulness and reliability of PW1, PW5 and PW8 and she found as a fact that those bruises as were seen on him and were listed in the medical report had not been caused by any of those witnesses. She nevertheless rejected the two records of interview because the visit of a lawyer (DW2) to see the applicant had not been recorded in the police station's Occurrence Book and those interviews had proceeded despite the fact that applicant's unwillingness to give any statement and his request for a medical examination had been conveyed by the lawyer to the Duty Officer.

8. With regard to what the applicant says was an inadmissible statement made at the police station, there was in fact no other interview taken of the applicant at the police station other than the two that were ruled inadmissible. The trial judge referred to the applicant's reply to the caution when he was arrested, this being before he was interviewed, and she had this to say about it:

"After my ruling, counsel for the Crown asked me if I had, by implication, ruled out what was said by the defendant to PW5 under caution. I replied in the negative. The defence case was that the defendant was never cautioned and that he had never utter (sic.) those words, the voluntariness or otherwise of such utterance does not arise. However, for the reasons I have given for my ruling, if I were to make a formal ruling on such utterance under caution, I would have ruled it admissible as I found PW5 a truthful and reliable witness and I accepted his evidence as to what occurred, both in the interview room and in the CID room."

We are of the opinion that the trial judge was quite right in what she said about the oral statement made by the applicant on arrest, what is usually referred to as a "verbal". Since the applicant contended that he did not make the oral admission he cannot be heard to say that it was involuntary. The only issues that would arise in respect of the alleged oral admission, therefore were first, whether it was made and, second, if so, what weight was to be given to it. Again, quite plainly this was a matter of credibility for the judge to consider which she did and having already found PW5 as an honest and reliable witness held that not only had he cautioned the applicant but that the latter had in fact made that utterance to him. We were satisfied there is nothing to support the suggestion of prejudice or lack of comprehension on the part of the trial judge and that in the circumstances the trial judge was justified in concluding that the irresistible inference to be drawn from the evidence which she had accepted was that the applicant was "employed to carry the envelopes which he knew to contain dangerous drugs".

9. We saw no merit in the application and accordingly refused the applicant leave to appeal.