HKSAR v. SIU YUK PIU

CACC 62/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2001

(ON APPEAL FROM DCCC 1028 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 6 February 2001, following a trial in the District Court before Judge Poon, the Applicant was convicted of trafficking in a mixture containing 46.10 grammes of heroin hydrochloride for which he was sentenced to six years and nine months' imprisonment. The Applicant now seeks leave to appeal against conviction.

Prosecution's case

2. Briefly, the prosecution's case against the Applicant was that on 23 August 2000, after the car in which he was the sole occupant had stopped, police officers (PW1 and PW2), on searching the car, found the drugs behind the loudspeaker which was set into the driver's door. The heroin itself, which was contained inside 200 straws, had been packed in four transparent bags all of which were inside a black plastic bag. The Applicant then allegedly asked to be given a chance. He went on to say he could volunteer some important information if the police did not arrest him. The Applicant also said that the police had found all the "junk" (white powder) stored in the car. He had $9,420 in his possession. Later, when a record of the arrest and conversation was made at the police station he said: "I do not sign".

3. Using a standard chemical test, the Applicant's left middle fingerprint was discovered on the black bag containing the heroin.

4. It was admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, that the registered owner of the car which the Applicant had been driving was Wong Pak-tuen (Wong) who was arrested on 27 September 2000 in connection with this case as well as an unrelated offence of criminal intimidation.

Defence case

5. The Applicant, a 24-year-old car salesman in his brother's motor company, who was previously of good character, gave evidence. Mr Marash, SC, presented the Applicant's defence in the court below on the basis that Wong was a friend of the Applicant who had parted with his car for the brakes to be repaired.

6. The Applicant testified that it was as he was delivering the car back to Wong after completing the job that police stopped him. He accounted for his fingerprint on the bag containing the drugs by saying that when he was asked what was in the bag, he had "instinctively" spread out his hands. It was the defence case that in the process he had touched it. The Applicant also denied making any reply which could be construed as a confession. He said that the post-record about his arrest and the replies he was supposed to have given had been invented by the arresting officer. He had refused to sign the written post-record. Instead, he made a complaint to the duty officer and later to the Complaints Against Police Office.

7. The Applicant's defence also relied on the evidence of Tam Chi-kong (DW2) who was in charge of Auto Sports Motor Parts Garage. He produced a book which recorded on a daily basis the repairs which were carried out there. He was able to point to a repair to brakes on 23 August 2000 which the Applicant had done at a job-cost of $600.

Issue at trial

8. As the judge aptly remarked, the case was one which turned on the credibility of the witnesses. In her Reasons for Verdict, the judge expressed her view about the Applicant's evidence in forthright terms. She found that he was "not a credible witness" and that he could be seen to be "making up evidence as he went along". In the light of these findings, it is not surprising that she concluded that the Applicant had made the admissions alleged against him and that he had touched the bag containing the drugs before police discovered it in the car.

Grounds of appeal

9. Mr Cheng Huan, SC, on behalf of the Applicant, submitted that the verdict recorded by the judge was unsafe and unsatisfactory on five grounds. Only parts of the second and third of these grounds had any substance and we propose to concentrate upon them alone.

10. Putting aside the words allegedly spoken by the Applicant, which effectively amounted to a confession if they were uttered at all, the only remaining evidence which was crucial in proving that the Applicant had knowledge of the drugs in the car was the finding of the Applicant's fingerprint on the hidden bag of drugs. Plainly, if his fingerprint had got there because he had been allowed to touch the bag after its discovery by police, the fingerprint ceased to have any probative value.

11. Part of Mr Cheng's second and third grounds of appeal criticised the judge's findings in her Reasons for Verdict on this specific aspect of the case.

12. The judge had expressed herself in these terms:

"I make the following observation about the evidence of the defendant and his witness:

1) In relation to how his fingerprints came about to be on the plastic bag containing the drugs, his evidence originally was that when PW1 brought the bag to him he said, 'Ah Sir, what's it? The car is not mine and I don't know what it is.' It was after he said this that he extended his hand to take the bag. At that point he heard someone say, 'Don't let him touch it.'

However, later he was observed to have said this: 'I asked what those things were. I put my hand out to take it. He said "don't move" and handcuffed me. I said the things were not mine and the car did not belong to me.'

It is clear that there is a discrepancy in when during that alleged conversation did the defendant extend his hand to touch the bag. Furthermore, I find it difficult to understand why one would attempt to take hold of a bag to see its contents when it is his case that he had never seen this bag before." (Tr. pp. 3-4)

13. These findings, coupled with four other rather more substantial points in the case, led the judge to the conclusion that the Applicant had been an untruthful witness whose evidence could be rejected "in its entirety".

14. A little later, the judge went on to say, in the context of her assessment of PW1:

"One crucial issue in the present case is the fingerprint evidence. In cross-examination, PW1 was asked if he handed the black plastic bag containing the drugs to the defendant to look at before asking the defendant what it was. PW1 answered in the positive. On re-examination, when PW1 was asked if he had given the bag to the defendant, he answered that throughout he had not let the defendant handle the bag. The allegation that the defendant's hand came into contact with the bag when he attempted to touch it was never put to PW1.

As I have already rejected the evidence of the defendant for the reasons above stated, I find that at no time did the defendant touch the plastic bag after interception by the police as he alleged and a fingerprint was left on the plastic bag before the interception." (Tr. p. 6)

15. Mr Cheng contended that the judge, on this central topic in the case, had fallen into error in rejecting the Applicant's evidence on the one hand and in accepting PW1's evidence on the other. He submitted that the discrepancy to which the judge had referred in the Applicant's evidence had no material significance and that the Applicant's account of having tried to take hold of the bag to see what it contained was, contrary to the judge's finding, at least as consistent with innocence as it might have been with guilt. As for the discrepancy in PW1's evidence, this should never, he submitted, have been resolved in a way which was adverse to the Applicant.

16. As to the first of these points, we are somewhat surprised that the so-called discrepancy in the Applicant's evidence was considered to have been important enough to be mentioned amongst the reasons for rejecting his testimony. The Applicant had not contradicted himself as to the words he had spoken and, so far as we can see, he had not consciously contradicted himself as to the sequence of events. Looking at the passage in chief from which this point arose, there was the following dialogue:

"Q. Yes, tell us what happened please.

A. He took the packet to me and asked me what it was.

Q. Who was holding the packet when he approached you, he was?

A. The 1st witness.

Q. What did he do with the packet?

A. He held it in his hands and came to me.

Q. What did you say, if anything?

A. He asked me what it was and I said, 'Ah sir, what is it? The car's not mine. I don't know what it is. I have never seen it before. What is it?' And I extended my hands to touch the packet.

Q. Did you touch the bag, did you take control of the bag?

A. Yes, when I was going to take it I was immediately handcuffed and the officer says, 'Don't let him touch it.'

Q. Did you in fact touch the bag?

A. Yes.

Q. Did you see what was inside it?

A. No.

Q. Did anyone ask you if you knew what was in the bag?

A. Yes, I said I do not know." (Tr. p. 71)

17. Shortly afterwards, the court adjourned for a little over an hour and a half after which Mr Marash returned to the subject in these terms:

"Q. Now, Mr Siu, we were dealing with the finding of the drugs, do I understand from your evidence before lunch you didn't actually see who found the drugs in the car?

A. I didn't see who took it up. I just know that PW1 brought it to me.

Q. Now you told us before lunch that you said you didn't know what the drugs - or what was in the bag, what they were. What was the attitude of the police officers when you said that?

A. Their attitude was aggressive and I asked what those things were and I put my hand out to take it. Then he said 'Don't you move,' and handcuffed me, and I said that those things do not belong to mine, that the car was not mine." (Tr. p. 72)

18. It seems to us that in this last passage the Applicant was attempting to list the things which were said and done in no particular order. He was never questioned by the prosecutor or by the judge to find out if there was anything sinister in the apparent change in the sequence of events. If it was an inconsistency in the Applicant's account, as opposed to a mere recapitulation in general terms of the evidence he had already given, it seems to us that it was of little consequence and perhaps also that it was somewhat harsh to hold this against the Applicant when he had not been given the opportunity to comment on the point being taken against him.

19. Mr Cheng's second point that it was, in effect, unfair of the judge to have regarded the Applicant's desire to take hold of the bag being held by the police officer (PW1) as "difficult to understand" when it was the Applicant's case that he had never seen it before, is a matter we again consider to have been of no great consequence and can perhaps best be regarded as a neutral feature in the case.

20. The third and by far the most important point is concerned with whether the judge had correctly grasped the full significance of the evidence given by PW1 in relation to whether the Applicant had touched the bag after it had been discovered in the car.

21. PW1's evidence contained a most important discrepancy. In cross-examination, the following dialogue took place:

"Q. Now you said that you showed it to the defendant, you actually gave it to the defendant to look at and said, 'What's this?' Didn't you?

Court: Could you be more specific, give what to the defendant to look at?

Mr Marash: The black bag, the black plastic bag.

Court: The black colour bag.

A. Yes." (Tr. p. 34)

22. Mr Marash had chosen his words carefully and his question was perfectly fair. In chief, PW1 had said that he had taken the bag and shown it to the Applicant and asked him what it was. In the passage just cited, Mr Marash was squarely putting his case by suggesting that the officer "actually gave it to the defendant to look at" and PW1 had answered in the affirmative.

23. This matter was understandably the subject of re-examination. Prosecuting counsel sought to ask whether throughout the time PW1 was enquiring into the contents of the black plastic bag and the four smaller bags inside, they were at all times held by him. The question was ruled to be in leading form and Mr Marash commented that it was also contrary to the evidence given earlier by PW1. The judge then asked for clarification, and PW1 was asked by the prosecutor:

"Q. .... did you give it to the defendant, give all the bags to the defendant?

A. No.

Q. Throughout, no?

A. Correct." (Tr. p. 44)

24. When the Applicant gave evidence, the same topic was briefly touched upon when the prosecutor suggested at one stage that it had "never been put to PW1 or PW2" that the Applicant's left hand had come into contact with the black bag when he was being shown it by police. Mr Marash rightly protested that it had been put, and the judge agreed with him. She reminded the prosecutor of the evidence saying amongst other things:

"And you have re-examined on that particular point, as well, how could you say that he was not cross-examined on it?" (Tr. p. 79)

It is all the more surprising, therefore, to find in the judge's Reasons for Verdict the comment, in the passage cited earlier, that:

"The allegation that the defendant's hand came into contact with the bag when he attempted to touch it was never put to PW1." (Tr. p. 6)

25. It seems to us that the judge had materially misdirected herself as to the state of the evidence related to how the Applicant's fingerprint might have found its way onto the black plastic bag. Plainly, PW1 had agreed in cross-examination that he had given the bag to the Applicant to look at. On this scenario, the Applicant must have touched the bag. Whether or not this is what PW1 had meant to say, bearing in mind his answer in re-examination, is beside the point. What is important is that the judge appears to have considered that on this most material of issues, a crucial aspect of the defence case had not been put. In such circumstances, we find it very likely that this error on the judge's part contributed to her conclusion that "at no time did the defendant touch the plastic bag after interception by the police".

Conclusion

26. We propose, therefore, to give leave and treating the application as the appeal we allow the appeal and quash the conviction.

(After hearing counsels' submissions, the following orders were made:

(1) Re-trial on a fresh indictment;

(2) costs in the Court of Appeal and the District Court awarded to the Appellant, to be taxed if not agreed;

(3) the Appellant to be granted bail with conditions pending re-trial.)