HKSAR v. WONG ZHI

CACC 232/2018

[2021] HKCA 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2018

(ON APPEAL FROM HCCC NO 29 OF 2018)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court):

A. Introduction

1.  The appellant faced one single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”). It is alleged that on 23 May 2017, he trafficked in 1,999 grammes of a crystalline solid containing 1,992 grammes of methamphetamine hydrochloride (commonly known as “Ice”).

2.  The appellant pleaded not guilty to the charge and stood trial before Campbell-Moffat J (“the judge”) and a jury in the Court of First Instance. On 1 August 2018, the appellant was unanimously convicted. On 7 August 2018, the appellant was sentenced to 25 years and 9 months’ imprisonment.

3.  At the hearing on 7 October 2020, the Single Judge^[1] granted the appellant leave to appeal on certain grounds of appeal against conviction and sentence for the reasons set out in the leave judgment^[2].

4.  In respect of the grounds on which leave was refused, the original Notice of Renewal filed on 12 November 2020 was subsequently withdrawn with a written confirmation that the appellant would no longer pursue the renewal application.

5.  At the conclusion of this appeal, we allowed the appeal and indicated that we would hand down our reasons for so doing in due course. We now give our reasons.

B. Prosecution Case

6.  The appellant, a Mainlander, entered Hong Kong on the strength of a 2-way permit through Lo Wu checkpoint at 10:24 am on 23 May 2017^[3]. On the same day, he checked into the Regal Riverside Hotel, Sha Tin, for a booking of only one night^[4].

7.  At around 8 pm that evening the appellant was intercepted by two police officers (“PW1” and “PW2”) at Kong Pui Street Rest Garden, Sha Tin, New Territories^[5]. He had a black cross-shoulder bag on his body and was holding a sealed carton in his left hand^[6].

8.  It was the evidence of PW1 that a packet containing 200 grammes of Ice^[7] was found in the appellant’s cross-shoulder bag. It is worth noting that the drugs were inside a plastic bag that was in turn kept in a grey bag with a label marked “竹炭” (bamboo charcoal). The tying string to the opening of the grey bag^[8] was missing. The grey bag was contained in an outer plastic bag.

9.  Nine other similarly labelled and packed packets, each containing approximately 200 grammes of Ice, were found inside the appellant’s carton box. Nevertheless, the tying strings to those nine packets were intact^[9].

10.  PW1 testified to the effect that when he questioned the appellant about the contents of the packet found inside his cross-shoulder bag, the appellant said it was “Ice drug” in Cantonese^[10]. When being cautioned by PW1 for the Ice found in his cross-shoulder bag and the carton box, the appellant remained silent. PW2, who was responsible for checking the carton box on the ground, said in his evidence that he did not hear such an admission being made^[11].

11.  In total, 1,992 grammes of Ice narcotic, with an estimated value HK$623,688, were seized^[12]. It was an admitted fact that there was a fingerprint examination of the outer plastic bags of all ten packets but no mark of value was found^[13]. Upon arrest, the appellant was in possession of HK$5,400, RMB113 and two mobile telephones^[14].

12.  It was also an admitted fact that the carton in question belonged to a batch of five cartons consigned under the same waybill number “3386” originating in Shenzhen, China^[15]. The record showed that this consignment arrived in Hong Kong on 19 May 2017^[16], and was collected by an unknown person from the logistics depot at or about 3:00 pm on the same day. This person could not be traced^[17].

13.  A post-record of the arrest and caution was made by PW1 in his police notebook. The notebook recorded the appellant’s refusal to sign after the reading out exercise carried out by the Mandarin interpreter (“PW3”) at 11:31 pm, which was repeated by a detective sergeant (“PW4”) at 11: 50 pm on 23 May 2017^[18].

14.  This post-record did not contain any reference to the alleged “Ice drug” admission made by the appellant prior to his being cautioned. At first it was not intended by the prosecution to adduce the post-record as the appellant refused to sign on it. However, when the appellant gave evidence-in-chief he denied that the post-record was ever read or explained to him. He said that he only first became aware of the allegation that a packet of Ice had been found in his cross-shoulder bag in his 3^rd video-recorded interview (“VRI”). As a result, after the appellant had completed his evidence, PW1 was recalled and the prosecution further called PW3 and PW4 to give evidence in rebuttal.

15.  Three sets of VRIs were conducted with the appellant. The first two ended prematurely either because of a technical issue or the appellant indicating that he was unfit to continue. The 3^rd VRI took place between 5:38 pm and 6:35 pm on 24 May 2017. The Prosecution did not seek to rely on any of these interviews.

C. Defence Case

16.  The appellant testified but called no witness. He had a clear record in Hong Kong^[19]. He claimed to be a sports coach in Hunan, China with a monthly income around RMB2,000 to 3,000. He also traded in goji berries from which he could earn between RMB1,000 and 2,000 per month^[20]. Prior to his arrest, he had travelled to Hong Kong between 6 and 11 May 2017 to get medicine for his family^[21]. He said he did not speak Cantonese^[22].

17.  He said he came to Hong Kong for sightseeing on 23 May 2017 and intended to stay for 3 to 4 days^[23]. He had not made any pre-booking for hotel rooms. He just walked in and checked into Regal Riverside Hotel on the day of his arrival^[24].

18.  He told the court that he was requested by Huang Bing, a friend who lived in Zhuhai, to pick up some Chinese herbal medicine for him. This request was made by Huang over the telephone and the appellant agreed to help^[25]. Huang also told the appellant to call the contact person “Fei Chai” in Hong Kong in order to arrange for the pickup^[26]. After arriving in Hong Kong the appellant first had a telephone conversation with “Fei Chai” over the phone^[27]. He then received a call at about 8 pm from another man who said the Chinese herbal medicine would be dropped off at a bus stop nearby^[28]. At the bus stop he saw a black 7-seater vehicle pull over and he collected from it a sealed carton box^[29]. He did not examine the origin of the carton, nor did he open it and check what was inside^[30]. As he found it light in weight, he carried it with him to have dinner nearby before going back to the Hotel^[31].

19.  On his way to the nearby restaurants, he was suddenly surrounded by at least ten men^[32]. They grabbed hold of his arms and someone pressed against his shoulders^[33]. The cross-shoulder bag and the carton box were violently snatched from him and he was pinned onto the ground^[34]. He was threatened and was not allowed to say anything^[35]. It seemed to him that he was also punched several times^[36]. He only realized that his assailants were police officers after he was handcuffed^[37].

20.  In his defence, the appellant denied that he had any package of Ice in his cross-shoulder bag, and denied knowing that the carton box contained packets of Ice. He also denied being told by the police at the scene of arrest about the finding of the Ice in the cross-shoulder bag. Most importantly, he denied making the “Ice drug” admission.

D. Grounds of appeal

21.  A total of five grounds of appeal, Grounds 1 to 5, were advanced in the Amended Perfected Grounds of Appeal filed on 22 December 2020. An application for leave to appeal with an additional ground, Ground 6, was filed on 24 February 2021. In view of the way this appeal was disposed of, we felt it only became necessary for us to deal with Ground 3, which was formulated pursuant to the judgment of the Single Judge in the leave application.

22.  This ground complains of the judge’s failure to direct the jury properly on the admission and the post-record in the summing up. It is submitted that the post-record was admitted into the evidence ex improviso only to rebut the appellant’s assertion that he did not know about the discovery of Ice in his cross-shoulder bag until the 3^rd VRI. Therefore, it was incumbent upon the judge to warn the jury as to the limited use of the post-record. In the absence of such a warning, the jury could have been led into adopting an impermissible line of reasoning that the post-record could be used to bolster the evidence of PW1.

23.  Given the doubtful provenance of the oral admission which should require rigorous scrutiny, failing to give a full and clear direction on the admission in accordance with Direction 39.1 of the Specimen Directions in Jury Trials, promulgated by the Hong Kong Judicial Institute, in its entirety renders the conviction unsafe and unsatisfactory.

E. Respondent’s submission

24.  Ms Parwani, for the respondent, was asked to specifically address us on this ground. She accepts that the judge failed to give a special direction in the terms of Specimen Direction 39.1. She argues, however, this is not a case where challenge had been mounted in relation to the voluntariness of the admission and no voire dire was ever held. She submits that, as the defence presented its case on the basis that no admission was ever made, such a direction was not required in the circumstances of the present case.

F. Discussion

25.  The prosecution presented its case on the basis that a separate package was found in the cross-shoulder bag of the appellant to which an admission of “Ice drug” was made. This admission, on its own, was direct evidence of knowledge. A post-record was subsequently made by PW1 in his notebook of the arrest and caution. It was recorded that under caution the appellant did not say anything. The post-record contained no mention of the alleged “Ice-drug” admission made by the appellant before the caution.

26.  Under cross-examination, PW1 admitted that this admission was an important piece of evidence^[38]. However, he did not make such a record in his notebook because “at that time the circumstances did not allow”^[39]. The first time he made a record of the admission was at 9:30 pm on 24 May 2017 in his witness statement. By then, the 3^rd VRI had already been completed. As mentioned above, the 3^rd VRI was not relied on by the prosecution; only a small part of which was played during cross-examination of the appellant in order to discredit his evidence that he was “shocked” when he first learned of the drug in his cross-shoulder bag during this interview.

27.  The case of HKSAR v Chan Yuk Ling^[40] disclosed a not dissimilar factual situation:

“5. …PW1 did not during the whole course of this post-recording bring to the notice of the applicant that she had said anything incriminating prior to her arrest.

6. There were two video-recorded interviews between the police and the applicant. … PW1 conducted these interviews and did not put to the applicant in either of them that she had said anything incriminating before she was arrested…”

28.  Line J, delivering the judgment of the Court, said:

“10. We judge that there was a good point to be made undermining the police evidence concerning the alleged oral admission indicating knowledge of the ketamine. We can see no good reason why the matter was not put to the applicant in her video-recorded interview. PW1 was given the opportunity to explain his failure to do so. He provided no explanation for that failure. It was more than reasonable to expect him to have done so. One reason for not having done so would be that the alleged admission had not in fact been made but had been manufactured after the failure of the video-recorded interview to record anything incriminating.

...

13. …Convictions based on alleged oral admissions, which are not repeated in a properly recorded interview conducted shortly thereafter and where for no good reason the alleged admissions are not put to the interviewee, call for rigorous scrutiny. The reasons for verdict in this case revealed no scrutiny. The simple “verbal” has an unattractive history well known to criminal lawyers. …It is especially so, when the first written record of the alleged admission is made after the failure of the suspects to make a similar admission in their video-recorded interview.”

29.  In the present case, apart from a lack of support from any contemporaneous record, PW1’s allegation of a verbal admission by the appellant was also not backed up by the evidence of PW2, whose testimony was that he was busy dealing with the sealed carton box on the ground and did not hear the appellant make the “Ice drug” admission to PW1.

30.  It was pointed out to the jury in the summing up that^[41]:

“The prosecution say that he clearly knew it was ‘Ice’ because he said so when it was first discovered. The item in the cross-body bag. It may be of relevance to their case that the packet, P1, was the only packet in which the string was missing, which might suggest that somebody at some stage had looked into it to see that this was a packet of ‘Ice’ as opposed to a packet of charcoal.”

31.  In the light of all these matters, the lack of fingerprint evidence, especially on the packet which was alleged to have been found in the appellant’s cross-shoulder bag, instead of having a “neutral effect” or not going “one way or the other”^[42], may have has a bearing on the jury’s findings as to whether the admission was ever made.

32.  The appellant’s evidence was that there were threats and impropriety by the police at the time of the alleged admission. It was his case that he was pinned on the ground and not allowed to say anything^[43]. He talked about “certain violence used”^[44] by his assailants, who “applied a very great force and took it (the carton box) away”^[45], “grabbed” my hand and pressed against certain parts of my body”^[46], and grabbed “my arms, both arms and then someone pressed against my shoulders”^[47]. Later on, the appellant elaborated: “they pinned me to the ground and they threatened me”^[48], “when I was pinned to the ground it seems that I was punched several times by other people”^[49]. All of this evidence suggested that oppression had been used on the appellant.

33.  Specimen Direction 39.1, which applies to oral admissions as well as written records, reads as follows:

“There have been produced records of certain interviews which the police say they conducted with the defendant. The prosecution assert that [although you should not accept everything said by the defendant to the police as accurate] nonetheless the interviews contain admissions by the defendant that (state the essence of the admissions) and the prosecution further contend that those admissions are true.

The defendant’s case is that [he made none of those admissions and that they were fabricated by the police {but that to the extent that he is said to have adopted the admissions by appending his signature to those documents he was forced to do so; that the signatures are therefore worthless; and that the admissions are untrue}] [although he made the confession it is not true].

In deciding whether you can safely rely upon the admissions, you must decide two issues:

1. Did the defendant in fact make the admissions? If you are not sure that he did, you must ignore them. If however you are sure he did, then:

2. Are you sure that the admissions are true? In addressing that issue (whether the admissions/answers were true) decide whether they were, or may have been, made or given as a result of [oppression][something said or done which was likely to render them unreliable]. If you conclude that the admissions / answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions / answers.

In this case, the defendant alleges that (summarise the allegation). If you conclude that that allegation is or may be correct and that the admissions / answers were or may have been obtained as a result of that conduct, then you must disregard the admissions /answers.

If, however, you are sure that the defendant made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true. If, for whatever reason, you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true, you may rely on them. (Remind the jury of any specific weaknesses in the confession evidence which may reflect on its reliability.)”

34.  It was made clear by Macrae VP in HKSAR v Yeung Chun Hin^[50], that:

“19. …The suggested Specimen Direction sets out a progressive step-by-step approach for the jury, who might otherwise be confused by the interaction between an assessment of the truth and reliability of a confession and any circumstances of oppression which might impinge on that assessment.

20. …So far as the oral admissions were concerned, the jury had to determine whether they were made…

21. The jury also had to understand that they were to complete these fact-finding tasks first, and that even if they found against the applicant on these issues, that was not the end of the matter and they were still required to proceed in accordance with the steps set out in the Specimen Direction.

…

25. …the Judge did not ask the jury to consider, even if they were sure the applicant had made the admissions and that they had not been made in circumstances of oppression, whether the admissions were true and to disregard them if for whatever reason they were not sure they were true.”

35.  It was submitted by Ms Parwarni that in the present case no voire dire was held on the issue of the voluntariness of the admission. However, even if voluntariness was not apparent to the parties at the commencement of the trial, the alleged oppressive conduct at the time of the alleged admission unfolded in the course of the appellant’s evidence and should have put both counsel on alert. It should be made clear that the need to give Specimen Direction 39.1 does not depend on whether a voire dire has been held in relation to a disputed admission. Even if there had not been any suggestion of threats or impropriety by the police at the time of the alleged admission, the issue remains whether the oral admission has been made, and if so, what weight should be given to it: Thongjai v The Queen^[51].

36.  The judge, in her summing up, set out a “chronology of the two sets” of evidence to the jury^[52] by reminding them of the appellant’s evidence of impropriety at the time of his arrest^[53] and the “parallel version” put forward by the prosecution^[54]. She then went on to deal with the post-record which recorded that the appellant did not say anything^[55], and reminded the jury that the appellant was “absolutely adamant”^[56] that there was no notebook and it was his claim that “he only knew about it at the time that somebody mentioned it in the third VRI ”^[57].

37.  Unfortunately, nowhere in the summing up did the judge direct the jury in unambiguous terms to go through the progressive step-by-step process, the first being to decide whether the admission was ever made.

38.  This is yet another case where counsel for the prosecution and defence failed to draw this vital omission to the attention of the judge. This was a matter so fundamental that we felt obliged to allow the appeal on this ground alone.

G. Retrial

39.  The application for retrial made by Ms Parwani was unopposed. We noted that this was a very serious case warranting 23 to 26 years of imprisonment upon conviction. The appellant was found in possession of a very substantial amount of Ice and the only issue at the trial was his knowledge. The appeal was allowed solely on the failure to give Specimen Direction 39.1, on which issue trial counsel had, to a certain extent, contributed to the judge’s error by not drawing the omission to her attention.

40.  For the above reasons, we ordered a retrial of the appellant on a fresh indictment before another judge.

[1]   McWalters JA

[2]   [2020] HKCA 863, unreported, date of reasons for judgment: 28 October 2020.

[3]   Admitted Facts, §14, AB 12

[4]   Admitted Facts II, §2, AB 14; AB 28I – K

[5]   AB 46 A – D

[6]   Admitted Facts, §10 – 11, AB 11; AB 25J – L

[7]   AB 46 O

[8]   Admitted Facts, §4, AB 10

[9]   Admitted Facts, §5, AB 10 – 11

[10]   AB 46P – Q

[11]   AB 47A – H, 192U – 193L, 208O – R

[12]   Admitted Facts, §8, AB 11

[13]   Admitted Facts II, §1, AB 14

[14]   Admitted Facts, §19, AB 12

[15]   Admitted Facts, §15, AB 12

[16]   Admitted Facts, §16, AB 12

[17]   Admitted Facts, §17, AB 12

[18]   AB 70-71

[19]   AB 22G – H

[20]   AB 36B – E, 214E – 215I

[21]   AB 36P – Q

[22]   AB 36K – M

[23]   AB 38K – M

[24]   AB 38N, 234D – F

[25]   AB 37A – J

[26]   AB 37M – O

[27]   AB 41E – L, 235K, 237H – S

[28]   AB 41P, 42A – B, 239M – T

[29]   AB 42D – G

[30]   AB 42H – J

[31]   AB 42K – P

[32]   AB 43C – D

[33]   AB 252F

[34]   AB 43E – J, 247N, 251C

[35]   AB 226F – G, 315D

[36]   AB 315L

[37]   AB 44G

[38]   AB 151C – D

[39]   AB 151G

[40]   [2013] 1 HKLRD 1093

[41]   AB 33N – P

[42]   AB 27S – T

[43]   AB 226F – G, 247N

[44]   AB 250P

[45]   AB 251D – E

[46]   AB 251E

[47]   AB 252G

[48]   AB 315D

[49]   AB 315L

[50]   [2018] 5 HKLRD 412

[51]   [1998] A.C. 54

[52]   AB 35T

[53]   AB 43 – 45

[54]   AB 45 – 47

[55]   AB 51D

[56]   AB 51L

[57]   AB 51M – N