HKSAR v. WONG KOK SUM SAMMY

CAC C 367/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2012

(ON APPEAL FROM HCCC NO. 419 OF 2011)

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R E A S O N S   F O R   J U D G M E N T

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Hon Lunn JA (giving the Reasons for Judgment of the Court):

1. At the hearing we refused the applicant’s application for leave to appeal against his conviction after trial before Macrae J and a jury on 24 August 2012 of a single count of attempting to traffic unlawfully in a dangerous drug on 3 June 2011, namely 2.47 litres of liquid containing 139.54 grammes of cocaine, contrary to section 4 (1) (a) and (3) of the Dangerous Drug Ordinance, Cap.134. We said that we would give our reasons in due course. This, we do now.

THE TRIAL

2. There was no dispute at trial that two wine bottles contained in a package carried by DHL, but intercepted by the Customs and Excise Department on 2 June 2011, were found to contain the dangerous drugs stipulated in the Particulars of Offence.  The consignee described on the Air Waybill was Peng Xiu Qiang, whose address was given as 2A, Right Time Building, 21-27 Playing Field Road, Mongkok, Hong Kong.

3. Having intercepted the package, Customs officers attempted to make a controlled delivery of the parcel to that address, which housed the Mongkok Bird Club.  The attempt to effect delivery of the package on the night of 2 June 2011 was unsuccessful when it was found that no one was on the premises.  On the following day a party of Customs officers, two of whom were dressed in the uniform of DHL employees, tried again to deliver the package to Mr Peng, at that address.

The prosecution case

4. The prosecution case was that shortly after 10:30 a.m. on 3 June 2011 Customs Officer 98123, Lo Man kit, and a colleague entered the premises of the Mongkok Bird Club.  They were dressed in the uniform of DHL employees.  Customs Officer 98123 effected delivery of the package to Mr Peng, who had emerged from a mahjong room crowded with men in response to his name being shouted out.  Mr Peng confirmed his identity by producing a travel document.  Then, Customs Officer 98123 revealed his identity as a Customs officer and arrested and cautioned Mr Peng.  In response, the latter explained that the package contained red wine which he was receiving on behalf or another, whom he named as ‘Sum Chai’.  Although initially Mr Peng was taken to a corridor and then to the lift to be taken downstairs, on Inspector Ho’s instructions Mr Peng was brought back to the mahjong room in an attempt to identify ‘Sum Chai’.  There, he pointed out the applicant as ‘Sum Chai’.

5. In response to the request of Customs Officer 9847, Au Chi Kin, the applicant produced his identity card in the name Wong Kok Sum.  At issue in the case was what conversation then ensued and who was present.  Customs Officer 9847 said that he had arrested and cautioned the applicant for being involved in a dangerous drugs case.  Although issue was taken as to whether or not the words of caution were administered, there was no dispute that the applicant had made a general denial to the effect that dangerous drugs had nothing to do with him.  Issue was taken by the applicant in respect of the evidence led by the prosecution of the questions asked of the applicant and his answers.  Customs Officer 9847 said the following dialogue ensued:

“Q. Did you ask Peng to receive a postal packet for you?

A. Yes, I asked him to receive it for me.

Q. Do you know what’s inside the postal packet?

A. I will hold a wedding banquet on 16 June. Therefore I asked my friend in Argentina to send me two bottles of red wine.

Q. Why didn’t you receive it yourself but asked Peng to sign an acknowledgement of receipt for you?

A. It’s because I often have to go to Yuen Long for some recycling business and I’m seldom here, so I asked ‘Ah Keung’ to receive it for me.”

6. Issue was taken with the evidence of Inspector Ho that he was present in the mahjong room at that time and that he heard the conversation between Customs Officer 9847 and the applicant, the contents of which he confirmed.  Similarly, issue was taken with the evidence of Customs Officer 98123, Lo Man Kit, that he and Inspector Ho had both gone into the mahjong room where Mr Peng was asked to identify ‘Ah Sum’.

7. In addition to the evidence of Customs officers, the prosecution relied on the testimony of Mr Chen Fai and Mr Peng.  The former said that some 10 days earlier he had been asked by the applicant to receive the delivery of some wine but, when he indicated that he was not free to do so, the applicant had secured the agreement of Mr Peng to receive the wine.  Mr Chen Fai testified that he was in the mahjong room when Customs officers returned in what he described as “chaotic” conditions and, after the applicant had admitted that he was ‘Sum Chai’, told the Customs officers, “The goods are mine.  I asked him to receive them.”

8. Mr Peng confirmed that testimony, saying that he had been told that it was red wine and had no idea it was dangerous drugs.  He said that telephone records of telephone calls between him and the applicant on the afternoon and evening of 2 June and on the morning of 3 June 2011 were telephone calls made by the applicant to him enquiring as to whether or not the wine had been delivered.  He denied suggestions made to him in cross-examination that he and his friends had arranged for the delivery of the package of wine and that it had nothing to do with the applicant.

Voir Dire

9. Following a voir dire, in which the judge received evidence and submissions over a period of five days, the judge excluded from the evidence permitted to be led before the jury by the prosecution a written ‘post-record’ made at the Customs office at Hong Kong International Airport in the early afternoon of 3 June 2010 by Customs Officer 9847 of the short dialogue that had ensued between the officer and the applicant in the mahjong room of the Hong Kong Bird Club, which the applicant had signed.

10. The judge rejected the applicant’s testimony and found that, “there were no threats, inducements or other oppression employed against or exerted on the defendant at any stage of the investigation.”[1]  Also, he rejected the applicant’s testimony that he had repeatedly asked to be allowed to contact a lawyer, “in the vehicle, at his home and at the Customs and Excise office at the airport”.  He did not accept that the applicant had asked for and been refused a lawyer.[2]

11. Whilst he determined that he had no doubt as to the “voluntariness of the document”, he excluded that evidence in the exercise of his discretion.  He stated that he did so out of concerns arising from the fact that the Notice to Persons in Custody served on the applicant had been taken away from him thereafter.  As a result, he found it “reasonably possible” that the applicant may not have been “properly made aware or realised that he could have a lawyer present before signing the post record”.  However, the judge stated that he found the oral admissions by the applicant to Customs Officer 9847 to have been made voluntarily and determined that there was no reason to exercise his discretion to exclude those oral admissions.

The defence case

12. The applicant gave evidence in the defence case and called his wife as a witness.  He testified that he was a clerk in a firm of solicitors and that he had been a member of the Mong Kok Bird Club for about two years.  He knew both Mr Chen Fai and Mr Peng.  He had bought a bird from the latter.  He was present at the Bird Club on the morning of 3 June 2011 because it was his day off.  He was playing mahjong with Mr Chen Fai and Mr Peng, when the latter’s name was called out and he left the table.  Then, he heard shouts of “Customs!”  Shortly afterwards, Customs Officer 9847 and Customs officer 7336 came into the mahjong room.  Other than them, the only other person in the room was ‘B Chai’.  In response to the question of the former officer, as to who ‘Sum Chai’ was, he had identified himself.  When that officer told him that he was going to be arrested for involvement in a dangerous drugs case the applicant protested, “What do dangerous drugs have to do with me?”  He was not cautioned in the mahjong room.

13. The applicant denied having been asked the questions or having given the answers to which the prosecution witnesses testified.  He made no such admissions.  The package had nothing to do with him.  He had no friends in Argentina and there was no need to arrange for wine to be sent to Hong Kong for the wedding banquet.  He had made phone calls to Mr Peng on 2 and 3 June 2011, but they were nothing to do with the delivery of the parcel.  Rather, they were conversations about formalities in connection with getting married on the Mainland and about the bird that he had bought from Mr Peng, which was sick.

14. The applicant testified that from the time that he was placed by Customs officers in a vehicle outside the Bird Club he had requested repeatedly that he be allowed to contact a lawyer.  Those requests were ignored.  Having been taken to the Customs offices at the Hong Kong International Airport and, having seen a lawyer, in the course of an interview at about 6 p.m. he complained that he had not said what Customs Officer 9847 alleged that he had said in reply to questions after he had identified himself in the mahjong room at the Bird Club.

GROUNDS OF APPEAL AGAINST CONVICTION

15. In the grounds of appeal against conviction Mr Andrew Bruce SC submitted, in effect, that the judge had failed to give a fair and balanced summing-up.  First, it was contended that the judge had failed in that regard in respect of the evidence relevant to the issue of whether or not at the mahjong parlour the applicant had made admissions attributed to him.  That was a crucial issue.  Relevant to the resolution of the issue was whether or not Inspector Ho had been present at the alleged oral admissions.  It was accepted that it was permissible for the judge to invite the jury to consider the following, as relevant to that issue[3]:

“You might also ask yourself whether, as the officer in charge of the case, he would have been interested to know firsthand who ‘Sum Chai’ was, and thus been present himself, or whether that was something he might have left to his subordinates to find out. After all, the case had taken an unexpected turn.”

16. However, it was submitted that the judge had failed to present a fair and balanced summary of the evidence relevant to that issue.  In particular, he had failed to remind the jury of the evidence that Customs Officers 98123, 9847 and 7336 had failed to record in their witness statements the presence of Inspector Ho in the mahjong room at that time.  Similarly, the judge had failed to remind the jury that in his witness statement and his notebook entry Inspector Ho had failed to record that he was present.  However, in his oral submissions Mr Bruce accepted that, save in respect of Customs Officer 98123, the judge had reminded the jury of that evidence.  Rather, the complaint as refocused was in respect of the structure of the summing-up.  It was submitted that the judge ought to have balanced his comment as to the reasons why it might have been expected that Inspector Ho would wish to be present if Mr Peng identified ‘Sum Chai’ with comments that drew together the evidence that the defence pointed to as supporting the applicant’s testimony that Inspector Ho was not present in the mahjong room.

Ground 2

17. By Ground 2 complaint is made that the judge “failed to deal with the inconsistency” between the evidence of Inspector Ho and that of Mr Chen Fai as to whether the latter had been asked to produce his identity card following a similar request of the applicant.  Whilst Inspector Ho testified that he had made that request and had established that he was Chen Fai, the latter had denied that any such request was made of him.  The inconsistency between their testimony was relevant to the crucial issue of whether or not Inspector Ho was present in the mahjong room, as he testified he was, at a time at which it was said that the applicant made the crucial admissions.

Ground 3

18. By Ground 3, it was submitted that, whilst the judge was correct in ruling inadmissible the post-recorded notebook entry made by Customs Officer 98123 of the alleged oral admission by the applicant in the mahjong room of the Bird Club, he erred in not determining to exercise his discretion to exclude the evidence in respect of the oral admission itself.  It was contended, on behalf of the applicant that the judge’s failure to exercise his discretion to exclude the alleged oral admissions of the applicant resulted in unfairness to the applicant whose counsel was circumscribed as to the ambit of matters that could be raised in cross-examination of the Customs officers, in particular in respect of matters that occurred subsequent to the alleged oral admissions and which led to the making of the post-record, the subsequent complaints by the applicant and his denial of those oral admissions in a interview conducted of him by Inspector Ho in the early evening of 3 June 2011.

A CONSIDERATION OF THE SUBMISSIONS

A balanced and fair summing-up?

19. There is no dispute that a trial judge is under a duty to summarise the issues and the evidence relating to the issues, accurately and fairly to the jury.[4] Having identified the important issues that arise for the jury’s consideration, it is the duty of the judge to summarise the evidence relevant to those issues relied upon by the prosecution on the one hand and by the defence on the other hand.  A fair and balanced summing-up, does not require that the judge remind the jury of every piece of evidence relied upon by the parties, still less does it require the judge to repeat all the matters referred to in the speeches of counsel.  What is required is that the judge reminds the jury of the important elements of the evidence that are relevant to the crucial issues of the case.

20. At a very early stage of his summing-up, the judge identified as a contentious issue the alleged oral admissions made by the applicant[5]:

“What happened immediately after the defendant’s arrest is also in dispute, and it is an important matter which you will have to determine. The prosecution say that in answers to questions posed by one of the Customs officers inside the mahjong room, the defendant made certain admissions to the effect that Peng had received the parcel on his behalf. The defence say that no such admissions were made, and that he had nothing to do with the parcel.”

21. Later in the summing-up[6], the judge described the controversy as being one of the “critical areas of evidence”.  Having reminded the jury that there was no dispute that the applicant had said to Customs Officer 9847 words to the effect that the drugs had nothing to do with him, the judge said that the defence case was that was all the applicant said at that stage, whereas the prosecution case was that there had ensued a short dialogue in which the applicant admitted that Mr Peng was receiving the parcel for him.

22. Of the evidence relevant to the jury’s consideration of whether or not the applicant had made the alleged oral admissions, the judge said[7]:

“In deciding whether they were said or not, and if they were, what reliance you can place on what the defendant said to PW3 (Customs Officer 9847), you should bear in mind such discrepancies as you find there to be between the Customs officers and between the Customs officers and the civilian witnesses as to what happened, what was said, and who was inside the mahjong room at the time; the apparent differences between the information he gave in his answers and the correctness of that information; and the fact that in contrast to the evidence of PW3, the defendant says he was not cautioned. All of these issues may or may not affect your decision as to whether these things were said and the reliance you place on the defendant’s alleged admissions.”

23. Apparently, the judge’s reference to ‘civilian witnesses’ was a reference to witnesses other than Customs officers and, in context, to Mr Chen Fai and Mr Peng.  Certainly, in due course the judge reminded the jury of their evidence relevant to the issue.

The presence of Inspector Ho in the mahjong room at the time of the alleged oral admissions by the applicant

24. The significance of whether or not Inspector Ho was present in the mahjong room at the time of the oral admissions by the applicant lay in his testimony confirming the evidence of Customs Officer 9847 not only that he was present but also that he heard the applicant make the admissions to which Customs Officer 9847 testified.

25. In respect of Inspector Ho’s evidence, the judge reminded the jury that he testified that he instructed Customs Officer 98123 to bring Mr Peng into the mahjong room to see if he was able to identify the person he called ‘Sum Chai’ at whose request he had received delivery of the parcel that morning.  Inspector Ho testified that the applicant had been pointed out by Mr Peng.  Then, the judge said of Inspector Ho’s testimony[8]:

“The witness then gave a similar account to PW 3 (Customs officer 9847) of the defendant initially saying, “What dangerous drugs?  It has nothing to do with me” in answer to his arrest and caution, as well as the three questions and answers which followed.”

26. As Mr Bruce acknowledged, the judge not only reminded the jury of the suggestion made by the defence that Inspector Ho’s out-of-court witness statement was inconsistent with his evidence, namely that he had in fact entered the mahjong room and heard the applicant’s admissions, but he did so twice.[9]  On the first occasion, the judge said that it was suggested to Inspector Ho that a plain reading of paragraph 5 of his witness statement was inconsistent with his evidence, “that he had in fact entered the mahjong room and heard what the defendant said to PW3 (Customs Officer 9847)”.  On the second occasion, the judge said:

“It was put to him that in paragraph 5 of his own witness statement, a copy of which you have, made no mention of going into the mahjong room. He agreed that he had not said so in so many words, but he had written that PW3 and he both learned from Peng who "Sum Chai" was.”

27. That passage in the summing-up occurred almost immediately before the passage in respect of which it is contended that the judge’s observation was unfair and unbalanced, namely that as the officer in charge of the case Inspector Ho might be expected to have been interested to find out himself who ‘Sum Chai’ was.  Furthermore, it was followed by a reminder to the jury that Inspector Ho had accepted that he had noted the dialogue between Customs Officer 9847 and the applicant in narrative and not in question and answer form.  Moreover, the jury was then told of Inspector Ho’s evidence that in an interview conducted of the applicant, in the presence of his lawyer, between 18:20 and19:45 on 3 June 2011[10]:

“… the defendant said that he had never mentioned the postal packet to any officer at the scene, nor had he seen it, that it was not his, and he was not the recipient. The inspector also confirmed that the defendant, in the presence of his lawyer, then made a complaint against PW3 (Customs Officer 9847).”

28. The submission that the judge did not remind the jury of the evidence relevant to the out-of-court statements of Customs Officer 98123 is correct.  The judge did remind the jury that it was his evidence that, having removed Mr Peng from the Club premises and having taken him to the lift, on instructions he had returned to the premises:

“at which point Inspector Ho came out of the premises and instructed the witness and Customs Officer 9847 to go into the premises again with Peng. He disagreed with the suggestion that neither he, Inspector Ho or Peng had gone into the mahjong room upon their return into the Bird club.”[11]

29. In his testimony, in response to the suggestion that he had not even made a record of the presence of Inspector Ho in the mahjong room, Customs officer 98123 explained[12]:

“In my record, I wrote down I went in with officer Au and other Customs officers. I did not write down specifically the details of the other officers.”

30. Customs Officer 9847 was the officer who testified that he had arrested and cautioned the applicant, from whom he had received responses to his questions, including the admission that he had asked Mr Peng to receive the packet.  The judge reminded the jury that it was his evidence-in-chief that those admissions were forthcoming after he, Customs Officer 98123 and Inspector Ho had gone into the mahjong room together with Mr Peng, for the latter to identify ‘Sum Chai’.[13]  Then, the judge went on to direct the jury[14]:

“In cross-examination, the witness confirmed that there was no mention in his notebook or his witness statement made on the following day, 4 June 2011, of Inspector Ho ever being inside the mahjong room. However, he insisted that both Inspector Ho and PW 2 (Customs Officer 98123) had gone into the mahjong room. At one point he thought he heard Inspector Ho asking about the identity of the fourth mahjong player.”

31. Similarly, in respect of Customs Officer 7336, the judge reminded the jury that, although it was his testimony that he was guarding the mahjong room when Customs Officers 98123 and 9847, together with Inspector Ho and Mr Peng, entered the mahjong room, he accepted that there was no mention of anyone other than Customs Officer 9847 going inside the mahjong room.[15] The judge added that Customs Officer 7336 explained, “that he would only write down things that were important.”

32. At an early stage in his summing-up the judge had directed the jury that in considering evidence as to a statement said to be inconsistent with oral testimony they were to have regard to matters omitted from statements, as well as to positive assertions suggested to be inconsistent.[16] In respect of both, they were directed correctly that the matter was relevant only to the credibility of the witness concerned.

Conclusion

33. There is no merit in the contentions made on behalf of the applicant that the judge’s summing-up was unbalanced and unfair in that he had failed to remind them that in their out-of-court statements the other Customs officers who were present made no specific mention that Inspector Ho was present in the mahjong room in the period during which the applicant’s alleged admissions were made.  The judge did so specifically in respect of Inspector Ho himself and Customs Officers 9847 and 7336.  He did not do so in respect of Customs Officer 98123. Perhaps, it would have been better if he had done so.  However, it is to be noted no such point was made in respect of Customs Officer 98123 in the lengthy closing speech of counsel for the applicant.  By contrast, he made that point in respect of the other Customs officers.  In light of the explanation of Customs Officer 98123 quoted earlier, perhaps counsel for the applicant thought the point not worth making to the jury.  In any event, there is no doubt that the judge made it abundantly clear to the jury that, in considering whether or not the alleged admissions were made by the applicant, the defence relied on the absence of positive references to the presence of Inspector Ho in the out-of-court statements of the Customs officers.

34. We are satisfied that in the summing-up the judge did remind the jury more than adequately of the force with which the defence made the point.  The time and place in which a judge chooses to do so in a summing-up is a matter for the trial judge, as Lord Taylor CJ observed in the judgement of the Court of Appeal of England and Wales in R v Richardson[17]:

“In our judgment, the pattern of the summing-up, in what order and under what headings the evidence is marshalled, are matters wholly within the trial judge’s discretion. Providing that he fairly reviews the essential features of the evidence, the structure of a summing-up cannot be impugned simply because the defence would have preferred a different format.”

35. We are satisfied that there is no merit in any of the other multiple complaints that are made in respect of an examination of the minutiae of the evidence.  The lack of merit in the these complaints is best exemplified by the submission made, in what was described as a “major discrepancy”, as to the difference between the evidence of Customs Officer 98123 and Customs Officer 9847 of what each testified that they heard being said in the mahjong room after Mr Peng had pointed out the applicant as being ‘Sum Chai’.  It was contended that the judge had failed to draw the jury’s attention to that difference in their evidence.

36. In respect of Customs Officer 98123, the judge reminded the jury that his evidence was that after, Mr Peng had pointed out the applicant and said that he was ‘Sum Chai’, “Peng was then taken out of the room.”  Complaint was made that the judge had not reminded the jury that in cross-examination, when asked to confirm that he had not heard Customs Officer 9847 say anything inside the mahjong room, Customs Officer 98123 said:

“It is correct that I did not write down in my statement that officer Au (Customs Officer 9847) said something, but earlier on, when you asked me questions, I remember that at the time when I went out, I heard him asking Sum Chai for his identity card.”[18]

37. It was contended that the ‘major discrepancy’ lay in the fact that Customs Officer 9847 testified, as the judge reminded the jury correctly, that he had approached the applicant and, “asked him if he was ‘Sum Chai’, and asked him to produce his identity card.”

38. It beggars belief that such a small and utterly inconsequential difference in the evidence of the two officers, of what they heard and/or recalled, was advanced as a ‘major discrepancy’ in their evidence of which the judge was required to remind the jury and that the failure to do so contributed to an unbalanced and unfair description of the evidence.  In context, it is to be remembered that it was the evidence of Customs Officer 98123 that, after Mr Peng had pointed the applicant out, he was otherwise engaged.  At Mr Peng’s request he had retrieved his wallet from inside the drawer of the mahjong table and taken him out of the room.[19]

Ground 2

39. Similarly, the submission that the judge’s failure to draw the jury’s attention to the discrepancy in the evidence of Mr Chen Fai and Inspector Ho, as to whether or not Inspector Ho asked to see and inspect his identity card, also contributed to unfair and unbalanced summing-up lacked all merit.  In fact, the judge did remind the jury that Inspector Ho had testified that after Mr Peng had pointed out the applicant in the mahjong room he had dealt with Mr Chen Fai:

“The witness then asked the other of the two men in the mahjong room for his identity card, and establish that he was called Chen Fai.”[20]

The judge reminded the jury of Mr Chen Fai’s evidence in that respect:

“He said no one asked him for his identity card.”[21]

40. We are satisfied that, in context, having drawn the attention of the jury to the evidential difference of the two witnesses, no more was required of the judge.

The applicant’s oral admissions

41. In his ruling in the voir dire, the judge noted that the only impropriety alleged by the applicant before or at the time of the alleged oral admission was a failure of the Customs officers to caution him.  Of that, the judge found[22]:

“I have no doubt that the defendant was properly arrested and cautioned before the impugned conversation took place between PW2 (Customs Officer 9847) and the defendant.”

Further, the judge went on to determine that he was sure that[23]:

“… there were no threats, inducements or other oppression employed against or exerted upon the defendant at any stage of the investigation.”

42. Of his exclusion of the post-recorded written record, the judge said that he had made the ruling in the exercise of his discretion[24]:

“on the very narrow basis that he may possibly not have been properly apprised of or realised his right to a lawyer before Exh PP17 was signed by virtue of the Notice to Persons in Custody being taken away from him by PW3 (Customs Officer 7336)”.

43. Having determined that he was sure that the oral admissions were made voluntarily the judge addressed the issue of the exercise of his discretion nevertheless to exclude those admissions from evidence.  In doing so, he said that he was mindful of the point made on behalf of the applicant, namely that counsel for the applicant was, “now deprived of the opportunity of making such points as have arisen during the voir dire concerning the taking of the now excluded post record, to the jury.”[25]

44. In determining, nevertheless, not to exercise his discretion to exclude the oral admissions the judge said of the position of counsel for the applicant:[26]

“Mr Jenkyn-Jones will not be prevented from cross-examining the officers who attended the Bird Club so as to highlight any discrepancies in their testimonies. Nor will he be prevented from referring to PW2’s (Customs Officer 9847) notebook entry of the impugned conversation and any differences between his evidence and what was recorded in his notebook. Nor will he be deterred from cross-examining PW4 (Inspector Ho) on the basis of the later record of interview in which the defendant denies saying what he is alleged to have said at the Bird Club, or to the effect that a complaint was made to PW4 (Inspector Ho) about the conduct of his subordinates; although I accept that Mr Jenkyn-Jones may well have to tread carefully in the way he deals with this evidence and, if he wishes to show the jury the record of interview, it will have to be edited. What Mr Jenkyn-Jones is effectively discouraged from doing is making various points to the jury about the written record itself and the way it is alleged to have come about. For my part I have already said that I see nothing in those points but I have to accept that I am not the jury which might take a different view. On the other hand, the jury will not now know that the defendant had in fact confirmed the answers he gave to PW2 (Customs Officer 9847) at the Bird Club by signing a post record of that conversation.”

45. The judge’s assessment in prospect of the ambit of the evidence on which counsel for the applicant would be able to cross-examine witnesses called for the prosecution, in consequence of his ruling excluding the written post record but his admission into evidence of the evidence in respect of the oral admissions of the applicant, was wholly vindicated, as is evident from the subsequent conduct of the trial.  Having cross-examined the Customs officers, counsel for the applicant sought to rely on discrepancies in their testimony.  Customs Officer 9847 was cross-examined on differences between his evidence and what was recorded in his notebook.  It was elicited from Inspector Ho in cross-examination that, at a record of interview in the evening of 3 June 2011, the applicant denied having made the oral statements attributed to him by Customs Officer 9847 in the Bird Club and that the applicant had made a complaint against that officer.

46. In his oral submissions, Mr Bruce suggested that the inability of the counsel for the applicant at trial to cross-examine prosecution witnesses on the making of the post-recorded record of the oral admissions of the applicant deprived the defence of making the point that originally the time of commencement of the making of the record was described as being 2:35 p.m., which time was also stipulated as the time of completion of the record.  Subsequently, the former time was amended to 1:50 p.m.  Also, it was not possible to draw the attention of the jury to the fact that there were two extra Chinese characters in the margin of the record, or the fact that the text of the three questions said to have been asked of the applicant and the answers attributed to him were one page of the document, whilst the signatures acknowledging the record were on a separate and different page.

47. In his ruling in the voir dire, the judge noted that the two Chinese characters in the margin of the record were at an unimportant part of the text of the record and went on to determine[27], “It seems to me to have been a simple, rather unimportant error during the course of writing the document.”  Similarly, the judge found the mistake as to the time of the commencement of the record as being[28], “Merely a mistake as to the time: no more, no less.”

48. There is no doubt that, where a judge has determined that an admission is voluntary, it is only in rare circumstances that it will be excluded in the exercise of the judge’s residual discretion.  In the Secretary for Justice v Lam Tat Ming & Another Li CJ, with whom all the other judges agreed, addressed that issue[29]:

“In this situation, where a caution has been administered and the confession is established to be voluntary, it has been rightly observed in many Hong Kong authorities that the residual discretion to exclude the admissible evidence consisting of the voluntary confession should seldom be employed. First, because relevant and admissible evidence would be withdrawn. Secondly, because the kind of conduct complained of should already have excluded the confession as involuntary. See R v. Lam Yip-ying [1984] HKLR 419 at 424G; R v. Chow Chi-hing [1993] 2 HKC 214 at 217E (where Litton JA described the discretion as very limited); R v. Chan King-hei [1995] 1 HKCLR 288 at 292 line 40 (Mortimer JA said the circumstances for its exercise will be rare). However, circumstances may still arise for its exercise; for example, where its prejudicial effect is out of proportion to its probative value.”

49. We are satisfied that the judge exercised his discretion appropriately in declining to exclude the evidence in respect of the oral admissions of the applicant.

Conclusion

50. In the result, we were satisfied that there was no merit in any of the grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction was refused.

[1] Appeal Bundle, page 58 N-P.

[2] Appeal Bundle, page 56 M-O.

[3] Appeal Bundle, page 22L-N.

[4] Lin Ping Keung (2005) 8 HKCFAR 52, at paragraph 24.

[5] Appeal Bundle, page 2E-I.

[6] Appeal Bundle, page 8R-page 9E.

[7] Appeal Bundle, page 9 H-N.

[8] Appeal Bundle, page 21S-U.

[9] Appeal Bundle, page 6 E-F; page 22 C-T.

[10] Appeal Bundle, page 22 R-page 23 B.

[11] Appeal Bundle, page 17 U-page 18 C.

[12] Appeal Bundle, page 279 L.

[13] Appeal Bundle, page 18 G.

[14] Appeal Bundle, page 19 H-K.

[15] Appeal Bundle, page 20 S-T.

[16] Appeal Bundle, page 6.

[17] R v Richardson (1994) 98 Cr. App. R. 174 at 178.

[18] Appeal Bundle, page 279N-O.

[19] Appeal Bundle, page 262J-M.

[20] Appeal Bundle, page 21 Q-S.

[21] Appeal Bundle, page 24 I –J.

[22] Appeal Bundle, page 58 J-K.

[23] Appeal bundle, page 58 N-O.

[24] Appeal Bundle, page 58 P-S.

[25] Appeal Bundle, page 59 D-F.

[26] Appeal Bundle, page 59 J page 60 D.

[27] Appeal Bundle, page 55 E-F.

[28] Appeal Bundle, page 54 R.

[29] Secretary for Justice v LamTat Ming & Another (2000) 3 HKCFAR 180, at page 180 C-F.