HKSAR v. MA YEE KEUNG

CACC 53/00

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 53 of 2000

(On Appeal from DCCC No. 892 of 1999)

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REASONS FOR DECISION

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Hon Woo JA:

1. This was an application for leave to appeal against conviction. On 18 October 2000, after hearing counsel for both sides, the Acting Chief Judge announced that we decided to grant leave to the applicant to appeal against conviction, and that treating the application as the substantive appeal we dismissed the appeal. He stated that we should give our reasons later, and here are our reasons.

2. The appellant was the 2nd defendant and was charged together with Chiu Shun-nin, the 1st defendant, before District Judge Muttrie, for trafficking in a dangerous drug, namely, 106.26 grammes of a mixture containing 38.67 grammes of heroin hydrochloride. As the 1st defendant had pleaded guilty but the appellant did not, the trial before the Judge only involved the appellant. The Judge convicted the appellant and sentenced him to 5 1/2 years' imprisonment.

3. On the day as shown in the particulars of offence, ie, 14 July 1999, at about 8.45 pm, on a road near the Kai Yiu Temporary Housing Area in Ngau Tau Kok, police officers stopped a light van with registration number GG2791, for which they had laid ambush. The appellant was driving the van. Beside the appellant was his wife, Madam Cheung, and sitting behind them was the 1st defendant. The 1st defendant got out of the vehicle and attempted to escape. He was stopped by the police and found to be in possession of a black plastic bag containing 6 packets of white powder, which was later found by the Government Chemist to be the heroin, the possession of which is the subject of the charge against both the appellant and the 1st defendant. The above facts were not disputed by the appellant before the Judge. It was also agreed that on the appellant's fingernail clippings taken at the police station after the arrest and on the shoes he was wearing, traces of heroin were found. Further agreed was that the appellant had borrowed from his cousin the van some days before the incident and had told the owner that it was for transporting goods.

4. At the trial, the prosecution sought to adduce certain confessions and statements made by the appellant. Adopting the alternate procedure, the Judge heard evidence from the prosecution and the appellant himself in order to decide on the admissibility of such confessions and statements. At the end, he admitted into evidence exhibit P2, a post-record of a statement made by the appellant upon his arrest at the scene, and P4, a record of a video-interview between PW1 and the appellant. However, he ruled inadmissible the records of the interviews subsequent to the taking of exhibit P4, namely, proposed exhibits P5, P7 and P9. The most important evidence shown in exhibit P2 and P4 is the statement made by the appellant at the scene.

5. The key issue before the Judge was whether the appellant knowingly participated in the transportation of the heroin found on the 1st defendant who had attempted to escape from the van when it was stopped by the police.

6. PW1, PC 53202 and another police officer PW2, were in a police vehicle driven by a sergeant who did not give evidence. The evidence of PW1 and PW2 was that after stopping the van, PW1 approached the appellant who was sitting in the driver seat of the van. PW1 told the appellant that PW1 suspected the appellant of possession of dangerous drugs and asked him to alight for a search. He cautioned the appellant, searched him and found nothing suspicious. The sergeant then came and said that the 1st defendant who had been in the van had been found with white powder on him. PW1 then arrested the appellant for possession of dangerous drugs and cautioned him. According to PW1's testimony on the special issue of admissibility, the appellant then said: "Ah sir, my wife had nothing to do with this case. It was Ah Nin and I who 'taw' (transliteration of Cantonese) this for somebody." The meaning of "taw" in Cantonese is to drag or pull, and as the Judge correctly put it, meaning "moving something". PW2's evidence is that the appellant at the scene said: "Ah sir, my wife had nothing to do with the white powder. It was Ah Nin and I who 'taw' it for somebody." This was also what was recorded in the post-record in exhibit P2. When PW1 subsequently repeated this to the appellant in the first video-interview, the appellant did not gainsay, as recorded in exhibit P4. These two exhibits were admitted into evidence after the Judge heard evidence on their admissibility. Returning to the scene, upon the appellant being further cautioned, he said nothing.

7. The appellant gave evidence only on the special issue of admissibility of his confessions and statements, but did not give evidence on the general issue. The Judge evaluated the evidence and opined that PW1 and PW2 gave evidence in a straightforward manner. He said:

"Having heard PW1 and PW2, I am in no doubt that D2 (the appellant) told PW1 that his wife had nothing to do with the matter and that D1 (the 1st defendant) and he were transporting what had been found on D1 for someone else. Now, it is true that the words do not specifically contain an admission of knowledge that what was being transported was white powder. I use white powder there; obviously in the Cantonese slang sense white powder means heroin, everybody knows that. However, on this I am entitled to look at the circumstantial evidence. There is no doubt that D1 was transporting heroin.

D2 is himself a drug addict. He had to be taken for methadone whilst in police custody. D2 had himself handled heroin and got it on his shoes. He is not the kind of person who could be expected to be ignorant of drugs and drug-related matters. When stopped, his immediate reaction was to exonerate his wife, but that immediate reaction was in no way that which one would expect from an innocent man who was himself a drug addict. One would have expected an innocent man at least to say, 'What white powder?' Of course, he sought to exonerate himself later, but by then he had time to think matters over.

It seems to me that the only inference which no reasonable person could fail to draw from what was said, and the circumstances under which it was said, is that D2 knew perfectly well that what he was transporting was white powder, i.e. heroin.

I am satisfied beyond reasonable doubt that the defendant was assisting D1 to carry something for someone and that he knew that what was being carried was a dangerous drug. This amounts to trafficking.

D2 is found guilty as charged and convicted accordingly."

8. On behalf of the appellant, several grounds of appeal against conviction were raised, three of them being substantive.

9. Ground 2 complains that in convicting the appellant, the Judge wrongly relied upon evidence which was before him for the purpose of determining the special issue only, and two pieces of evidence are identified in the Reasons for Verdict:

(a) "the defendant himself said that he mentioned white powder"; and

(b) "D2 is himself a drug addict. He had to be taken for methadone whilst in police custody".

10. Counsel referred us to R v Wong Kam Ming [1980] AC 247 in support of this ground. In that murder case, at the start of the trial the defence challenged the admissibility of his confessional statement on the ground that it had not been made voluntarily. The defendant gave evidence in the voir dire, in which he admitted that he had been present at the scene and involved in the attack of the deceased. The trial judge ruled the statement inadmissible but allowed the defendant's said evidence to be proved in the main trial. On appeal from Hong Kong, the majority of the Judicial Committee held at p 258C of the report that

"where the confession has been excluded, the argument against ever admitting such evidence as part of the Crown case must prevail."

11. The judgment went further to state, obiter, that

"the same exclusion of evidence regarding the voir dire proceedings from the main trial must be observed, regardless of whether the challenged confession be excluded or admitted."

12. Wong Kam-ming was discussed by the Hong Kong Court of Appeal, in R v Lai Chi-shing [1987] HKLR 422. At 424I-425E, Cons VP, delivering the judgment of the Court, said as follows :

" In a case of R. v. Wong Kan-ming (sic) [1980] AC 207 the Privy Council decided that where a confession was found upon a voir dire to be inadmissible what the defendant had said upon those proceedings should play no further part in the continued trial. That case, however, did not deal with what other witnesses, in particular those for the prosecution, had said.

In Ho Yiu-fai and Others v. R. [1970] HKLR 415 Full Court gave approval to what had by then become a common practice in the District and Magistrates Courts and is now usually called the 'alternate procedure'. In that case the court does not stop and enter upon separate voir dire proceedings, but merely notes the objection that is taken to the proffered statement and continues with the trial. The evidence as to the admissibility of the statement is taken, as it were, in parallel with the evidence upon the general issue. At some suitable stage, usually the close of the prosecution evidence, the defendant is given a chance to give his evidence and to call his witnesses in relation to the proffered statements alone. The ruling of the court upon the admissibility of those statements will be made at least before the defendant is required to answer, if necessary, upon the general issue.

In its judgment the Full court expressly decided that although in the event the statements were not admitted the judge nevertheless would be entitled to rely upon the evidence given by the prosecution witnesses. Is the position then any different where the alternate procedure is not followed, but the single judge does enter upon a voir dire?

In principle we can see no distinction. It seems to us to make no difference whether the evidence is given in what might be termed 'parallel proceedings' or in proceedings which are in one sense distinct and separate. The reason why there can be no repetition of the defendant's evidence is that he is, in effect, forced to give evidence on the question of admissibility. If he were not given protection against repetition on the general issue he would be improperly deprived of his right to silence. But other witnesses have no right to silence. They do not need to be protected from the repetition of their evidence, nor can we see any reason why the defendant should be so protected. It would in our view be absurdly technical to exclude evidence which the judge has already heard, in some cases only a short while before. Even if voir dire proceedings are proceedings separate from the general issue, they are proceedings in the same litigation, between the same parties and before the same judge or magistrate."

13. It is clear that, whether the alternate procedure or a voir dire has been adopted, insofar as the statement the subject matter of the proceedings has been held inadmissible, the evidence given by the defendant is inadmissible on the general issue. The dictum of the Judicial Committee cited above also extends that rule to a case where the statement has been held to be admissible. The rationale behind this is that a defendant is, when he is facing the prosecution's attempt to adduce his out of court statements as evidence implicating him, compelled to give evidence against their admissibility on the ground of involuntariness if he feels such to be the case, but his right to remain silent on the general issue must be protected. However, the rule has no application to the prosecution's evidence given on admissibility, which can be used and considered by the trial judge on the general issue.

14. The Judge apparently used the evidence given by the appellant in the alternate procedure, that the appellant said he mentioned white powder at the scene, to help him decide that the discrepancy between the testimonies of PW1 and PW2 - PW2 said the appellant used the words "white powder" which PW1 did not - was insignificant. He was wrong to have done that. However, from the evidence of PW1 and PW2 and in exhibits P2 and P4, which was admissible and had been admitted on the general issue, it is plain that the appellant himself did mention white powder. The Judge also erred in considering the evidence given by the appellant in the alternate procedure that he was a drug addict and that he had to be taken for methadone whilst in police custody. The appellant's complaint on this ground is therefore substantiated. Notwithstanding, it is clear from the Reasons for Verdict, cited above, that the Judge's conviction of the appellant was based on the following four important pieces of evidence:

(a) the appellant was driving the van containing the 1st Defendant who was trying to escape but was found to be in possession of the heroin when searched;

(b) the appellant's immediate reaction upon the police inquiry at the scene to exonerate his wife;

(c) his admission in that immediate reaction that it was he and the 1st defendant who were transporting the heroin that had been found on the 1st defendant for someone else; and

(d) traces of heroin were found on his fingernail clippings and shoes.

15. In our judgment, whether the appellant himself used the words "white powder" or merely "this case" was in the event of scant comfort to him, because it is common ground that the words and circumstances of his arrest made perfectly clear that the police were challenging him about his connection with the dangerous drugs carried by the 1st defendant, and it is the appellant's reaction which he chose to make which was not one to be expected from an innocent man, whether a drug addict or not. The evidence that the appellant was a drug addict and having to be taken for methadone could, in our view, only have been advantageous to him because that might proffer an explanation why traces of heroin were found on his fingernail clippings and shoes, though such an explanation was liable to be, and was in fact, rejected by the Judge. In view of the fact that it was agreed that the traces of heroin were found on the appellant's fingernail clippings and shoes, and he exercised his undoubted right not to give evidence on the general issue to explain how those drugs came to be there, the erroneous admission of the appellant's evidence of his being a drug addict could not have operated and did not operate to his detriment.

16. Mr Harris complained that the Judge had used the inadmissible evidence to conclude that the appellant "is not the kind of person who could be expected to be ignorant of drugs and drug-related matters". We were not persuaded that Mr Harris was entirely correct. What the Judge said is already quoted above and is repeated here:

"D2 is himself a drug addict. He had to be taken for methadone whilst in police custody. D2 had himself handled heroin and got it on his shoes. He is not the kind of person who could be expected to be ignorant of drugs and drug-related matters."

17. It appeared to us that the Judge's comment complained of was based more on the important pieces of evidence that are enumerated above.

18. Ground 3 complains that the Judge erred in drawing the adverse inference that "D2 knew perfectly well that what he was transporting was white powder, i.e. heroin" because the Judge failed to apply the proper test, namely, that such adverse inference should be compelling and one that no reasonable man could fail to draw. Our attention was drawn to Kwan Ping-bong and Another v R [1979] HKLR 1, 5, where on an appeal from Hong Kong, Lord Diplock in the Judicial Committee stated as follows :

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

19. In our judgment, the inference drawn by the Judge that the appellant knew perfectly well that he was transporting heroin fully complies with the qualification that it is compelling and is one that no reasonable man could fail to draw. The primary facts relied on by the Judge were that the appellant was driving the van containing his wife and the 1st defendant, that the 1st defendant tried to escape but when stopped was found to possess the heroin, that upon being questioned about the heroin under caution, the defendant replied that his wife had nothing to do with it but it was he and the 1st defendant who were moving it for someone else, and that moreover, there were traces of heroin found on his fingernail clippings and the shoes he was wearing. In our judgment, no reasonable man could fail to draw the inference as did the Judge, who had rejected the appellant's explanation during the video-interview as recorded in exhibit P4 that he only knew that the 1st defendant was transporting heroin when told by the police at the scene.

20. Ground 4 complains that it was wrong for the Judge to have admitted exhibit P2 and P4 when he ruled inadmissible the interviews contained in the proposed exhibits P5, P7 and P9. In his Reasons for Verdict, having stated that PW1, the taker of the appellant's statements, and PW2 gave evidence in a straightforward manner, he said:

"Even if PW1 did, after the first video interview, resort to some kind of underhand tactic that once he found that he was not getting the admission he no doubt expected, that would not necessarily mean that his evidence of what happened at the scene should be disbelieved. In any event, PW2 gave the same evidence of what happened and what was said at the scene."

21. It is plain that the Judge excluded the proposed exhibits P5, P7 and P9, which were the records of a second video-interview and two subsequent handwritten interviews, because he opined that PW1 might have resorted to "underhand tactic" in respect of those later interviews. Indeed, in his ruling on admissibility of the appellant's statements, the Judge expressed the following reasons for ruling out these proposed exhibits:

"The problem arises with the second (video) interview and the subsequent written statements or I should say written records of interview. It is suspicious that he (the appellant) should suddenly have changed his tune in the second interview and that he should have suddenly decided that he did not want a video interview when he had no problems with it previously. So I am left with a doubt as to the voluntariness of these interviews and accordingly that P5, P7 and P9 have to be excluded."

22. Exhibit P2 is a post-record of the appellant's statement made at the scene, and exhibit P4 is a repetition of the same in the first video-interview in which it was also shown that the appellant did not raise any challenge relating to the correctness of that statement. We are not satisfied that the Judge had made any mistake in ruling that these two exhibits were admissible.

23. Having considered this matter most carefully, we came to the view that despite the Judge's error in admitting the two pieces of evidence shown in ground 2 of appeal, the rest of the admissible evidence was so overwhelming that the conviction was neither unsafe nor unsatisfactory (ground 5 of appeal), nor was the conviction contrary to the weight of evidence called by the prosecution against the appellant (ground 1 of appeal).

24. In view of the success on ground 2, we granted leave to the appellant to appeal against conviction. The error of the Judge in considering on the general issue the appellant's evidence on admissibility was in our view, a material irregularity. However, in the light of the overwhelming admissible evidence in this case, we were of the opinion that there was no miscarriage of justice. We therefore applied the proviso to s 83 of the Criminal Procedure Ordinance, Cap 221 and dismissed the appeal.