NOOR MOHAMED SULTAN HAMEED v. R.

IN THE COURT OF APPEAL

1992, No. 220
(Criminal)

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. These are applications by Noor Mohamed Sultan Hameed ("the defendant") for leave to appeal his conviction by Mrs. Le Pichon, sitting as a deputy judge of the District Court, upon a charge of possessing dangerous drugs for the purpose of unlawful trafficking therein, and against a sentence of seven years passed in respect thereof.

2. On the evening of the 8th of February last year the defendant, a gem trader from Sri Lanka, was arrested near the Lee Gardens Hotel in the company of two other men. He had in his trousers pocket, in an old plastic bag, a packet of powder which weighed almost 1 kilogram and was found later to contain 37.44 grammes of what is commonly known as heroin. That evening, at the police station, he made a statement to an Inspector Ho and again at lunchtime the following day.

3. The statements were crucial to the case for the prosecution when the defendant was brought to trial on the 18th of May. Objection was taken to their admission and evidence of impropriety and inducement was given by the defendant. The learned judge found both statements to be voluntary, but excluded the first in the exercise of her "residual discretion", having a doubt as to its reliability by reason of evidence suggesting that the defendant was very distressed and emotional on the evening of his arrest and the accepted fact that he was weeping throughout the time the statement was taken. No doubt the judge had in mind the judgment of this Court in The Queen v. Lam Yip Ying [1984] HKLR 419 at 423/4 which concluded, we note, with a comment worth repeating, that such discretion should seldom be exercised. The judge declined to exercise similar discretion with regard to the second statement, accepting that the defendant had had sufficient time to calm down and recover from the initial shock of being arrested. She noted also that there was no evidence that he was then in the same distressed state as he had been the night before.

4. In his evidence on the voir dire the defendant said that prior to the first statement the inspector had suggested that nobody would believe that he, the defendant, had found the packet in the street (as he testified when giving evidence on the general issue) but that if he gave a statement in the way the inspector told him to, he might be able to get released. Furthermore, earlier on the inspector had rescued him from rough handling by other officers and advised him that if he did not make a statement the other officers would give him big trouble.

5. The judge included in her reserved judgment on the general issue the reasons for her decision on the voir dire. When dealing with the inducements we have just set out, she said:

" (The inspector) denies these allegations. It all turns on credibility and having seen both (the inspector) and the Defendant give evidence, I have no hesitation in preferring the evidence of (the inspector). Also, I do not accept the Defendant's evidence that at the time the first statement was taken, he asked for an interpreter."

6. In reliance upon this passage, and what is suggested to be the general approach of the judge, the first ground of appeal complains that the judge applied only the civil standard of proof and not that of beyond reasonable doubt. We have been referred to other cases where similar language led to the setting aside of the conviction. But we derive little, if any, assistance therefrom, for each case must inevitably turn upon its own particular circumstances. The crucial consideration for this Court in cases of this kind is whether the deciding judge or magistrate remained at all times conscious of the fact that although he or she did not believe the evidence put forward for the defence, it was nevertheless still necessary for the Crown positively to discharge whatever burden lay upon it beyond reasonable doubt. We are satisfied that in the present instance the learned judge did remain so conscious. Immediately after the passage quoted she continued:

"I am satisfied beyond reasonable doubt that (the inspector) cautioned the Defendant and the Defendant understood the caution ...".

The judge referred to the same standard when dealing with the defendant's command of English, another factor for consideration upon the voir dire; and immediately before she gave her decision during the course of the trial, counsel for the defence had concluded his submission:

"Statements not been shown by the Crown beyond reasonable doubt to be voluntary statement and should be declared inadmissible."

7. The judge's choice of words is unhappy, but we are not persuaded that she unconsciously fell into the error of applying the civil standard of proof.

8. The second ground of appeal was substantially amended during the course of counsel's submission. If we understand it correctly it now comprehends two points only. The first is that the taking of the second statement was itself oppressive in that the interview was conducted by the same inspector as had taken the earlier statement and that the defendant was, at least to some extent, still distraught and emotional, in particular that he was crying before the interview began. That much is accepted, but during the interview the inspector described the defendant as calm "like a normal person. Not emotional at all". We see no merit in this point.

9. The second point is that the second statement was tainted by its close relationship with the first, in particular in that it revealed by its contents the existence of an earlier inadmissible confession. This stems from a question by the inspector near the beginning:

"Q. In your cautioned statement given to me on the 8th January 1992, you claimed the 90 gm of suspected heroin did not belong to you but Jayatilaka, the person who was arrested together with you. Would you elaborate more on this point?

A. Yes. Jayatilaka gave me the drugs when we were walking along the street towards Lee Garden Hotel, ...".

10. Again we see no merit in this point. At best, had the trial been before a jury, the offending question would have been blacked out. The actual confession nevertheless would still remain.

11. Then it is suggested that the judge was wrong not to exercise her discretion in favour of the second statement as well, that she was wrong to say "there is no evidence" of distress, because it was accepted that the defendant had been crying. Having regard to the evidence of the inspector just mentioned above, we see no reason to think the judge misunderstood the situation.

12. The final suggestion that we need mention, one which counsel frankly admits he can put no higher than that it might raise a doubt in our minds, is that the judge wrongly considered the defendant's lies to be probative of his guilt. This arises from the passage in her reasons:

" The Defendant is clearly desperate to get out of his predicament and I have no doubt that he would resort to lying in the vain hope of extracting himself from his difficulties."

13. This is a suggestion not easy to grasp, for once the second statement is accepted that is the end of the matter. If true it is conclusive evidence of the defendants's guilt and there is no need for any further evidence. We take the passage in question as no more than a passing comment by the judge.

14. For these reasons we find that there would be no substance in the appeal against conviction and leave for the same is accordingly refused.

15. As to sentence, the seven years imposed is well within the guidelines laid down in The Queen v. Lau Tak Ming [1990] HKLR 370. Nothing that counsel has suggested leads us to think that it was manifestly excessive, or indeed excessive at all. The application is likewise refused.