HKSAR v. NG KA HO

CACC 283/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 283 OF 2011

(ON APPEAL FROM DCCC 269 OF 2011)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the reasons for judgment of the court):

1. At the hearing of the application we dismissed the applicant’s application for leave to appeal against his conviction on 11 July 2011, after trial before District Court Judge E. Yip, of a single charge of attempted unlawful trafficking in a dangerous drug, namely 112.39 g of powder containing 90.57 g of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 on 25 January 2011 on the ground floor of Metro City Phase 1, Tseung Kwan O.  We said that we would give our reasons in due course.  We do that now.

THE TRIAL

The prosecution case

2. The nub of the prosecution case was that on the evening of 25 January 2011 the applicant was seen receiving a bag outside a shop on the ground floor of Metro City Phase 1, which was being passed to him by his erstwhile co-accused, Lai Chi Keung.  It contained the dangerous drugs the subject of the charge.  As the bag was being passed from one to the other, police officers, who had been observing them, moved forward to intercept the two of them.  They dropped hold of the bag, which fell to the floor.  Lai fled, but was subdued and arrested by police officers nearby.  The applicant was arrested and cautioned by PC 34679 for the offence of unlawfully trafficking in the dangerous drugs, in response to which he said:

“ Ah Sir, somebody asked me to take over the dangerous drug K Chai. Give me a chance.”

3. Later, at Tseung Kwan O Police Station PC 34679 made a record of the circumstances of the arrest and cautioning of the applicant and his reply in his police notebook, which he read over to the applicant.  In response to his enquiry, the applicant told the officer that he had nothing to alter in the record and at his request he copied out the words of the declaration and signed his name, as did the police officer.

4. Having pleaded guilty to the same offence as that faced by the applicant, albeit contained in a separate charge, but not having been sentenced Lai was called as a prosecution witness.  He described the circumstances in which he had come to meet the applicant as part of an arrangement to hand over to him the dangerous drugs.  In return the applicant was to pay him $5,000.  Having met the applicant at a taxi stand at the entrance of Metro City Phase 1, the two of them walked away some distance together until they reached a place outside a shop, at which point Lai handed the bag of dangerous drugs to the applicant, who received them.  It was an admitted fact that at the time of his arrest the applicant was in possession of just over $5,000.

Special Issue

5. In the defence case, issue was taken with the making of the oral admission by the applicant on his arrest and the admissibility of the notebook entry relating to that alleged admission.

Prosecution case

6. PC 34679 was the only witness called in the prosecution case.

Defence case

7. The applicant gave evidence, denying that he made any oral admission and testifying that he had not signed the notebook entry voluntarily.  He did not read the notebook entry containing the account of his arrest and alleged admission and, although he had copied down the declaration he had not read it.  Without understanding what he was signing, he had signed the notebook.  He had been induced to do so by PC 34679’s promise that he would let him go.  No other evidence was called on behalf the applicant in a special issue.

Ruling

8. Having heard the evidence adduced on the special issue, the judge stated that he admitted into evidence the oral admission and the notebook entry.

The general issue

9. The applicant did not give or call any evidence in the general issue.

THE REASONS FOR VERDICT

Special Issue

10. In his reasons for verdict in respect of the special issue the judge noted that PC 34679 had denied the allegations put to him in cross-examination, in particular that he had never arrested and cautioned the applicant, that the applicant had not made any oral admissions and that the applicant had not read the notebook entry of those events because he had told him that it was a mere formality and police procedure only.  The judge noted, in the context of the fact that the applicant had given evidence in the special issue, that the applicant had a “clear record”.

11. The judge rejected the applicant’s evidence in the special issue, saying that his findings that the applicant was not telling the truth that he had signed the notebook without knowing its contents or that of the declaration were indicative of the fact that he was not honest or reliable as a witness.

12. In the result, the judge said that he found PC 34679 to be honest and reliable.  He found that none of the allegations in respect of which the applicant testified of misconduct had occurred.  In particular, he rejected the applicant’s testimony that the officer had induced him to sign the notebook with the promise that he would let him go.

General Issue

13. The judge said that he accepted the part of the evidence of Lai that had not been challenged in cross-examination by counsel for the applicant, namely that as instructed by a third party he had gone to Metro City to deliver the bag of drugs to someone.  However, he said that he accepted the submissions made on behalf of the applicant, namely that Lai was not a reliable witness and determined that the prosecution could not rely on the remainder of his testimony in support of their case.  In light of his concerns as to a lacuna in the evidence, as to whether the applicant was ever in physical custody of the bag containing the dangerous drugs, the judge said that he found the applicant guilty of attempted unlawful trafficking, rather than the full offence with which he stood trial.

GROUNDS OF APPEAL AGAINST CONVICTION

Grounds 1 and 2

14. By Grounds 1 and 2, Mr Charles Chan complained that the judge erred in admitting the admission of the applicant and contended that he had failed to give reasons for rejecting the evidence of the applicant and accepting that of PC 34679 in respect of that issue.

Ground 3

15. By Ground 3, complaint was made that the judge had failed to determine that the applicant had made the oral admission.  Further, that he failed to find that the applicant made the oral statement and notebook entry voluntarily.

Ground 4

16. By Ground 4 it was submitted that in admitting the evidence of the oral admission and the written record of it in the notebook entry the judge had failed to consider the use of his residual discretion to exclude the evidence in order to ensure a fair trial.

Ground 5

17. By Ground 5, it was contended that the judge had failed to give himself the appropriate direction in respect of credibility in relation to the applicant’s evidence.  Sensibly, having read the respondent’s written submissions, prepared by Ms Vinci Lam, Mr Chan informed the court that he did not pursue the argument.  He was well advised to do so since, as was demonstrated succinctly in the respondent’s submissions, the ground was bereft of any merit.

A CONSIDERATION OF THE SUBMISSIONS 

The judge’s acceptance of the evidence of PC 34679 and the rejection of that of the applicant in the Special Issue

18. The ambit of the area in issue in the special issue was narrow: first, had the applicant made an oral admission; second, had he acknowledged that oral admission by appending his signatures to the record of those events and that admission in the police officer’s notebook?  Had he done so voluntarily?  Clearly, the circumstances in which the applicant’s signatures came to be appended to that record were of key importance.  It was a permanent record of the transient oral assertion.  It was on that issue that the judge focused his reasoning for rejecting the evidence of the applicant.

19. The entry was contained in no more than five pages of the notebook.  It concluded with a declaration written by the applicant, to the effect that he had read the statement, knew that he could alter it, that it was true and that he had made it of his own free will.  Next to the declaration was appended the signature of the applicant.  On its face the entry took over 30 minutes to compile.  The judge rejected the evidence of the applicant, that he had signed the notebook without knowing of its contents or that of the declaration itself.  That, he said was “implausible”.  No doubt, that finding was made having regard to the inherent improbability that, in circumstances where a police officer had troubled to make a written entry in his notebook over a 30 minute period whilst the two of them were in a police station and the applicant under arrest, the applicant would append his signature and write the declaration without troubling in any way to find out what the entry stated.  What was the point of the officer troubling to make the entry and to ask the applicant to acknowledge its truth by writing other declaration and signing the entry?

20. The judge said that he used that finding as indicative of the lack of honesty or reliability of the applicant as a witness, which led him to reject his evidence on the special issue.  Clearly, he was entitled to do so.

21. In respect of the evidence of PC 34679, the judge determined that none of the matters alleged in the ‘Grounds of Objection’ had taken place.  That document extended to a second page of A-4 paper and contained detailed ‘Particulars’ of the alleged circumstances of the arrest of the applicant together with specific statements as to what had not happened, for example a denial that the applicant had been arrested, cautioned and had made the oral answer as alleged by PC 34679.  Those were all matters that had been put to the officer in cross-examination and denied.

22. The document did not contain the assertion that PC 34679 and induced the applicant to sign the notebook entry with a promise that he would let him go.

23. No doubt, that is the context in which it is appropriate to view the judge’s statement (paragraph 15):

“ I find PW3 (PC 34679) honest and reliable. I am satisfied beyond reasonable doubt that none of the particulars canvassed in the ‘Grounds of Objection’ had taken place or that PW3 had ever induced him to sign the notebook with a promise to let him go.”

24. The judge’s finding was an omnibus finding in respect of all the detailed matters that, no doubt, had been canvassed with PC 34679 in cross-examination.  It was to the effect that he accepted the police officer’s evidence in chief and his denials in cross-examination of those detailed allegations.  He was entitled to make that finding.

The applicant’s oral admission

25. At the outset of his consideration of the special issue, the judge identified the matters put in issue on behalf of the applicant (paragraph 11):

“ D1 alleges that he had not made any oral admission, he had not made or signed his part of the notebook entry voluntarily and it would be unfair to use it as evidence in court.”

26. As noted earlier, the judge went on to summarise the ‘Grounds of Objection’ advanced on behalf of the applicant, in which “involuntariness and unfairness” were alleged.  The document itself stated the scope of the objection as being:

“ … to the production of a post-recorded notebook entry made at 2213 hours on 25-1-2011 in the notebook of PC 34679 (pages 2 and 6) on the ground that D1 was made to write and sign involuntarily on the notebook by inducement, oppression and unfair means.”

In setting out the context of the objections it was asserted at the outset in the ‘Particulars’ that, “there had never been any earlier handing over of any bag of dangerous drugs from D2 to D1 as alleged by PC 34679 in the notebook entry or at all.”  Then, there was a complaint that in face of the applicant enquiry as to why he had been detained PC 34679 had said:

“ Don’t play tricks. Don’t say so much. Don’t give me this.”

Findings

27. (i)  The judge found specifically that the applicant had made the oral admission attributed to him by PC 34679 (paragraph 29):

“ D1’s (the applicant) oral admission was given after being arrested and cautioned trafficking in dangerous drugs immediately outside G61.”

      (ii)  Although the written objections to admissibility stipulated objections only to the production of the police officers notebook into evidence, it is clear that not only was the making of the oral admission itself in issue but also, given the circumstances alleged following the detention of the applicant, so was its voluntariness.  Clearly, the judge approached the matter on that basis as illustrated by his specific finding (paragraph 15), “I admit the oral admission and the notebook entry into evidence.”  Given that those findings were made in the context of the judge addressing a challenge as to voluntariness, it is clear that in so ruling the judge was satisfied, albeit that he did not state so specifically, that the oral admission and written statement were made voluntarily.

Residual discretion

28. Although the judge made no reference to his residual discretion, to exclude the oral admission and written notebook entry signed by the applicant in the interests of a fair trial of the latter, it is to be taken that he was perfectly aware of that power.  The judgment of this court, differently constituted, in HKSAR v Choi Gin Ngon [1998] 1 HKLRD 902 is authority, if one is needed, for such an obvious proposition.  More importantly, as Mr Chan accepted, no reason was advanced to the judge, as to any circumstances which would give rise to the need for a consideration of the exercise of the residual discretion.  None existed.

CONCLUSION

29. For the reasons set out above, we were satisfied that there were no merits in the grounds of appeal sought to be advanced on behalf of the applicant.  Accordingly, the application for leave to appeal against conviction was refused.