HKSAR v. CHAN YUK LING

CACC 102/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 102 OF 2012

(ON APPEAL FROM DCCC 1212/2011)

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J U D G M E N T

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Hon Line J (giving the judgment of the court):

1. This is an application for leave to appeal a conviction for trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134 following a trial before Judge Geiser in the District Court.

2. In view of the way we intend to dispose of the application we will not deal with the various grounds of appeal but turn straightway to the facts.

3. The prosecution’s case at trial was this: at 18:38 hours on 1 September 2011 police officers entered shop premises with a warrant and found the applicant there.  PW1 said to her "we suspect that you have dangerous drugs here.  We have to search here.  Are you the person in charge of this place?"  The applicant appeared to be very frightened and said "give me a chance.  Don't arrest me."  She then stretched out her right hand to the sliding door of a brown wooden cabinet.  PW1 told her not to touch the cabinet and the woman sergeant then took the girl out to a place next to the cabinet.  The applicant said at this stage that "the K was in the cabinet" as well as repeating "don't arrest me.  Give me a chance."

4. Ketamine and a spoon were found in the cabinet.  The applicant was asked "whose things of these?"  She did not reply.  Likewise she did not reply when asked what the purpose of some resealable plastic bags which were found in the cabinet or when asked how the money that was found there had been obtained.  At 19:01 hours the applicant was arrested and cautioned to which she replied "I have nothing to say".

5. PW1 made a record in his police notebook of events at the scene.  This note made no mention of the applicant saying that the K was in the cabinet, nor of any of the conversation prior to the arrest and caution.  PW1 made copies of this notebook entry and gave it to the applicant. This notebook was described as a post‑recording of the caution statement.  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.  The first commenced at 23:44 hours and concluded that 23:53 hours on 1 September 2011.  The second commenced at 00:05 hours and lasted until 00:23 hours on 2 September 2011.  The applicant was accompanied by a barrister during both interviews.  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, in particular no mention was made of her saying that the K was in the cabinet.  In the second interview the applicant consistently said that she had nothing to say but nonetheless PW1 asked her many questions, some of which dealt with details of what had passed at the shop.

7. PW1 said that at 01:41 hours on 2 September 2011, his notebook was seized as an exhibit.  He made a witness statement 05:10 hours.  Counsel suggested this witness statement was the first written record of the alleged oral admissions.  PW1 denied it and said that after his notebook had been seized as an exhibit he collected a new one and made a further post record of the incident.  This entry commenced at 03:40 hours.  This entry did, apparently, refer to what was said prior to arrest.  PW1 said that this notebook entry was not intended to be an exhibit.  He said that he did not show it to the applicant.  This notebook had not been disclosed prior to trial and was produced by PW1 in the course of his evidence.

8. PW1 said that it would not have been fairer to put the alleged admissions to the applicant for her response and that it was fairer to keep her in the dark about them.  He gave no explanation for those views.

9. As regards the timing of the caution he agreed that he could have administered the initial caution after the applicant had first said "give me a chance and don't arrest me".  He said that the reason he did not do so was because the applicant was very agitated at that time; she was moving her hands; she was in a very agitative (sic) mood".  This state of affairs would have existed at or very shortly after entry at 18:38 hours.  No further explanation was advanced as to why the caution was delayed until 19:01 hours.

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.

11. In those circumstances we would have expected the judge to deal with the point.  He failed to do so.  We do not say that if he had considered the point he would necessarily have found against the police. What worries us is that the point, which was central to the defence, does not appear to have been given consideration by him.  All he did in this regard was to say that the police officers remained unshaken in cross‑examination and that he believed their testimony.

12. It may well be, in different circumstances, that a finding that the prosecution witnesses remained unshaken will be sufficient to found a conviction based on their evidence.  It may be so when there is nothing in the evidence to contradict them or form the basis for an argument undermining them.  It can then sensibly be seen as a shorthand way of indicating acceptance, by way of implicit consideration of inherent probabilities, in circumstances where uncontradicted and credible evidence only points sensibly in one direction.  In such circumstances what other reasonable course is there than adopt the conclusion dictated by the evidence.

13. In our judgment, this is not such a situation.  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.  Of course there will be situations where a suspect may say something to his detriment when apprehended which he will not repeat later in interview, especially if he has seen a lawyer by then.  It is in such a situation that commonsense and fairness demand that the alleged admission be drawn to the suspect's attention.  It is especially so, when the first written record of the alleged admission is made after the failure of the suspect to make a similar admission in their video recorded interview.  It is especially so when a written record was made prior to the interview of something said at the scene after caution which was not incriminating.

14. Further, if the judge was satisfied with the explanation as to why three police officers, one of whom was a woman sergeant, could not manage to administer a caution to an agitated 21‑year‑old woman for some 20 minutes, he did not say why.  It occurs to us that the delay in administering the caution until after the ketamine had been found rather than administering it after the alleged incriminating admission indicating knowledge of ketamine in the cabinet, is capable of casting doubt on whether the admission was made.  If that admission was made as PW1 said then Rule 2 of the Rules and Directions for the Questioning of Suspects and the Taking of Statements required that he then caution the applicant, the obligation to do so arising "as soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence".

15. The conviction here did not depend solely upon the alleged oral admission.  However, in the absence of the judge being seen to deal with the matter and in the face of a point which causes us concern, we come to the view that the conviction is unsafe and unsatisfactory.

16. Before leaving this topic we wish to make three matters clear.

17. Firstly, if it is the case that there is an understanding within the police force that the first record to be made in an officer's notebook should only deal with what was said after caution and not with an incriminating admission made before caution, then that understanding must change forthwith.  It defies common sense.  It is an obstruction to justice.

18. Secondly, these courts will not stand by and see a return to the days when an applicant could leave a police station unaware that those who had apprehended him were going to say later in court that he had made an admission to them.  It had been hoped that the proper video recording of interviews with suspects would put an end to such a state of affairs.  Any efforts made by police officers to sidestep the safeguards that the video recorded interview provides, to both sides, will be countered productive.

19. Thirdly, judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement or repeated by him in front of the cameras.  We do not regard this as an isolated case.

20. We ask that the respondent refer this judgment to the Commissioner of Police for his consideration.

21. There is a further matter which causes us concern, although it did not appear in any ground of appeal.  At paragraph 34 of the reasons for verdict the judge said this:

“further, bearing in mind that the defendant is the co‑owner of the business, the signatory of the tenancy agreement and indeed the occupier of the premises at the time, I find the only inference to be drawn and one which I do draw is that the defendant was indeed in constructive possession of these drugs at the time”.

22. We do not understand why the judge used the word "constructive" to describe the inferred possession.  It would seem to indicate that he may have regarded the incriminating circumstances as fixing her with knowledge of the presence of the ketamine because she ought to have known rather than that she did know.  We would be slow to think that the experienced judge would think anything other than actual knowledge would do, but then why use the word?

23. Accordingly we will allow the application, treat it as the appeal proper and quash the conviction.

24. The respondent asked us to order a retrial.  We decline to do so.  We do not regard it as being in the public interest, taking into account the strengths of the prosecution’s case, either with or without the alleged admissions, the sixteen months spent in custody to date, the age and background of the applicant and the considerations that caused us concern.

25. We do allow the application that the appellant have her costs here and below, to be taxed if not agreed and order so.  There is no good reason why costs should not follow the event and we are conscious that it was shortcomings in the way the police proceeded, with whatever motive, that has resulted in today’s position.