HKSAR v. JARHIA KULDEEP SINGH

CACC 96/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 96 OF 2006

(ON APPEAL FROM DCCC NO. 1205 OF 2005)

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Reasons  for  Judgment

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

1.  On 2 March 2006, following a trial in the District Court before Judge Chua, the appellant, aged twenty-seven, was convicted of unlawfully trafficking in a crystalline solid containing 6.82 grammes of methamphetamine hydrochloride (‘ice’).  He now seeks leave to appeal against conviction.

2.  The allegation of trafficking, although straightforward on the facts, hinged on the admission the appellant was said to have made to the arresting officer that he was “taking” the ‘ice’ to someone.  Whilst this answer was disputed, the appellant’s possession of the ‘ice’ was admitted.  The central issue at trial, therefore, focused upon whether the appellant had given an answer to the police officer which could only be consistent with trafficking.

3.  At the conclusion of the proceedings on 29 August 2006, we gave leave.  Treating the hearing as the appeal, we allowed the appeal and quashed the conviction for trafficking, but substituted a conviction for possession of the ‘ice’.  Pursuant to section 54A of the Dangerous Drugs Ordinance, Cap. 134, we ordered a Drug Addiction Treatment Centre report before deciding on the sentence for the substituted offence.

Prosecution case

4.  The facts, in short, were that at 8.05 pm on 11 October 2005 in Tai Po Road, Shamshuipo, DPC 52035 (PW1) saw the appellant acting suspiciously.  The appellant was stopped and taken to the entrance of a building where he was searched by PW1.  The ‘ice’ was discovered in a transparent plastic bag in the appellant’s left trouser pocket.  The appellant was spoken to in Cantonese when the alleged confession, also in Cantonese, was made.

5.  Between 10.20 pm and 11.30 pm, PW1 made a full note (exhibit PD1) at Shamshuipo Police Station in which he set out his version of events relating to the appellant’s arrest at 8.08 pm.  The note (written in Chinese) then continued:

“… Then, I immediately cautioned you.  ‘You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.  Do you understand?’  After the caution, you said to me, ‘I was taking it to someone’ [‘ngoh law bei yan’].  I asked you, ‘To whom were you taking it?’  You said nothing else.

The above were the circumstances of how I arrested and cautioned you.” (Appeal bundle p. 14)

6.  The notebook entry was then translated into English for the appellant’s benefit by a senior inspector and, in this regard, it is accepted that the appellant is conversant with the English language.  The appellant was told that he could then choose whether or not “to write down ‘understand’ and sign”.  After the note had been translated, he replied: “I don’t sign … I do not sign my name.”

7.  A second officer, Detective Sergeant 21106 (PW2), corroborated PW1’s evidence to the extent that he recalled hearing the appellant say, after the ‘ice’ had been found on him: “Taking it to someone” [“law bei yan”].

8.  The notebook (exhibit PD1) belonging to PW1 and a video-recorded interview of the appellant (exhibit PD2) on 12 October 2005 between 8.28 and 8.37 pm, where essentially he declined to answer any questions directly related to the offence, were exhibited by the defence at trial.

9.  It was an admitted fact that the street value of the ‘ice’ was approximately $2,246 and that the appellant had $1,498 in his possession at the time of his arrest.  In the course of PW1’s evidence it became apparent that the police found no paraphernalia for packing or for consuming drugs at the appellant’s place of residence.

Defence case

10.  The appellant testified in English.  He described how he had been earning a monthly salary of $10,000 until he received a painful injury in March 2005 which caused him to start taking ‘ice’ in April 2005.  The contention that he was a consumer of ‘ice’ was supported by a finding in a medical report, arising from an examination he had undergone on 14 October 2005 at Lai Chi Kok Reception Centre, which gave a positive reading for ‘ice’.  The appellant said that the ‘ice’ in his possession on 11 October 2005 had cost him $1,400 and would have lasted him two to three days.  He alleged that he was not cautioned on arrest or asked anything apart from what was inside the packet in his possession.  He denied saying that he was “taking it to someone”.

The application

11.  Against the background of a hotly disputed confession to the police, the main ground of appeal was that the appellant’s right to remain silent was infringed by remarks made by the judge in her Reasons for Verdict and at an earlier stage when counsel for the defence was addressing her in his closing speech.

12.  These grounds of appeal read:

“Infringement on the Applicant’s right of silence

1. The learned Judge erred in drawing an adverse inference against the Applicant’s remaining silent while under caution by effectively commenting that if the Applicant had been falsely accused of saying something incriminating, it was unlikely that he would not say he never made the admission but chose to say ‘not answer’ (AB 10-11 para. 16, AB 130 A to E).

2. Similarly, it is likely that the learned Judge would have erred in drawing adverse inference against the Applicant for his remaining silent while under caution to Questions 75, 87 and 93 (AB 33 to 36) which were directly relating to the issues of the case.”

13.  We can put the second of these grounds to one side immediately.  It is, as Mr Simon Tam for the respondent was right to observe, entirely speculative.

14.  Turning to the 1^st ground, the judge had raised with counsel a concern in her mind about the appellant’s credibility because, on the one hand, the appellant had shown a willingness to be video-recorded in interview and yet, on the other hand, when given the chance to deny having made any confession to “taking [‘ice’] to someone” he merely chose (at “answer 86”) to say: “Not answer.”  In her Reasons for Verdict, the judge stated that she found this was an “unlikely reaction” on the part of “someone who had been falsely accused of saying something incriminating”.

15.  The judge had first expressed her concern on this issue when defence counsel was making his closing submissions.  This occurred in the following way:

“Mr Pannu:    … Of course, the VIR [video interview record] clearly indicates it is his own choice.  Even during the VIR, your Honour, you would have noted he’s so cooperative.  He even said, ‘Is the machine on?’ ‘Yes.’ ‘I don’t need Punjabi.  But if I’m stuck, perhaps yes.’  Your Honour, he does appear to be very very cooperative.  Now, if he had said the alleged sentence, ‘law bei yan [or] ngoh law bei yan’, one would have expected him to follow through and sign whatever.  But he says, ‘Look, I do not agree to that.  That’s why I didn’t sign it.’

There’s a ring of truth in this, your Honour.  [He] did say, ‘Yes, I found it.’  But why would he come back and say, suddenly …

Court:   Why didn’t he say, both at the post record and the interview, which part was inaccurate?

Mr Pannu:     Your Honour, he said, ‘I did not agree to part of it.’

Court:   Yes,  ‘I never said such and such a thing.’  Simple, isn’t it?  I mean you’ve turned it the other way round.  You said, ‘Why didn’t you ask which part was inaccurate?’  But it’s also it could be simple for him to say, ‘I never said such a thing.’

Mr Pannu:     That’s very unfortunate.  Your Honour, in fact, I agree.  He should have said when the video is on, ‘I do not agree.’  But, of course, your Honour, we have the benefit of only two alleged admissions.  ‘Ice’, ‘ngoh law bei yan’ or ‘law bei yan’.  Only two.

But, by his offer of plea to possession, it’s obvious which part he’s challenging.  But it’s unfortunate.  But when a defendant aged 26 is in the hands of officers, perhaps there are reasons where they’re a bit more refrained to just simply say, ‘I want to remain silent.’  Your Honour, we can’t go into his mind set.  We have officers and a defendant.” (Appeal bundle pp. 129-130)

16.  The combination of these factors led Mr Wong Man-kit SC to suggest on the appellant’s behalf that as, in effect, the judge was saying that the appellant had remained silent in circumstances where he would have been more likely to have spoken up if his account of having had words put into his mouth was true, this amounted to the drawing of an adverse inference against the appellant on account of his silence.  He relied, for this proposition, upon Mortimer NPJ’s judgment in Lee Fuk-hing v HKSAR [2004] 7 HKCFAR 600 at 622:

“55.   We agree with the reasoning of the majority in Petty & Another v R (1991) 55 A Crim R 322.  We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but as to the nice distinction drawn in R v Littleboy [1934] 2 KB 408 and later R v Ryan (1966) 50 Cr App R 144 there is doubt as to whether there is a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier.  Even if there is such a distinction, it is one which would be difficult for a jury to understand or apply.  There is a right to silence.  And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak.  In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.

56. A person’s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.  There are comments in some of the authorities to which we have referred which suggest that in some circumstances a trial judge may fairly inform the jury that an explanation has been made for the first time at trial provided that the judge also makes it clear that an accused has the right to remain silent and make no explanation in answer to police questions.  With respect such a direction is also objectionable.  It gives rise to an adverse inference against the accused.” (Emphasis added)

17.  Applying what was said by Mortimer NPJ, it was Mr Wong’s submission that the judge had taken an impermissible stance towards the appellant’s failure to reply which, in turn, caused her to doubt the appellant’s credibility.

18.  However, Mr Tam contended that this submission overlooked the reason which had led the judge to raise this issue with counsel in the first place.  It had, he suggested, to be remembered that it was defence counsel who had chosen to exhibit the video-recorded interview (exhibit PD2) wherein the appellant had refused to answer a number of important questions.  Mr Tam argued that defence counsel, Mr Pannu, had used exhibit PD2 in an attempt to persuade the judge that the appellant’s reactions supported the defence case that no confession of the kind recorded by PW1 had ever been made.  Furthermore, it was in regard to this assertion that the judge went on later to express her disagreement with Mr Pannu by saying under the heading of “Conclusion” in her Reasons for Verdict:

“16.   While it is true PW1 could have asked in the video interview which part of the content the defendant disagreed with, and had not, equally, the defendant had the opportunity to say he never made such admission.  Instead he chose to say ‘Not answer’ (see Answer 86, PD2).  This seems an unlikely reaction by someone who had been falsely accused of saying something incriminating.” (Emphasis added)

19.  In considering the points which were ably argued on both sides, it is apparent to us that the judge gave no indication at any stage that she was simply confining her remarks to the rejection of Mr Pannu’s argument that the appellant’s reactions were supportive of his case.  On the contrary, when stating that the appellant’s reply “Not answer” was an “unlikely reaction by someone who had been falsely accused of something incriminating”, the judge revealed that she was approaching this as a matter which went to the appellant’s credibility.  A misdirection to a jury, alluding to a defendant’s failure to give a proper response in such circumstances, would have amounted to a material irregularity having regard to the fact, as decided in Lee Fuk-hing (above), that “it is inappropriate in Hong Kong to use a person’s silence against him in any way”.  The same rule, of course, equally applies to a judge’s mistaken application of the law in the District Court which regrettably, with respect, it is apparent to us had occurred in this instance.

20.  On this ground, leave was granted and the appeal succeeded.

21.  In two further grounds of appeal, Mr Wong alleged:

“Application of the civil standard of proof in the trial

3. The learned judge erroneously preferred the prosecution case simply because Her Honour found that the defence case was ‘unlikely’ to be true (AB 10-11 paras 14-16).

4. On the crucial issue of whether the Applicant had said the oral admission, the learned Judge adopted the wrong approach of ‘it’s whether they (the police) are lying or the Defendant is lying.  There are not two ways about it.’ (AB 123 P to Q).”

22.  Mr Wong submitted that the judge, in the course of her Reasons for Verdict, had given an impression that she had considered the evidence on the balance of probabilities in that in three of the five concluding paragraphs of the Reasons for Verdict she described three crucial aspects of the defence case as being “unlikely”.

23.  Mr Tam accepted that it would have been better if the judge had expressly stated that she had found the defence on these aspects to be ‘inherently improbable’ or as ‘giving rise to no reasonable doubt about the prosecution case’, but he submitted that this was the meaning the judge had intended to convey.  He pointed out that, on the central issue in the case, the judge had in any event made it clear that she had applied the proper standard by saying:

“18.   The question left for me to consider is whether the defendant’s admission is true or whether the defendant blurted this because he thought it preferable to admitting he was taking drugs.  Looking at all the evidence I am satisfied beyond reasonable doubt his admission was true.  I am satisfied he was being paid to make the delivery.  The prosecution, having discharged its burden of proof of the charge, the defendant is convicted.”

24.  All that we need to say, in view of our conclusion on the 1^st ground of appeal, is that words which imply that the wrong standard of proof may have been applied to evidential issues are not to be encouraged.  An “unlikely” defence is not necessarily one which must be rejected.

25.  The other complaint, relating to the judge’s comment that either the police were lying or the appellant was doing so, arose in the course of defence counsel’s speech where Mr Pannu was trying to suggest that the police had given their account out of zealousness rather than in a spirit of dishonesty.  This occurred as follows:

“Mr Pannu: But just because they’re police officers doesn’t mean they’re always telling the truth.  Now, your Honour, I’m not saying they’re lying.  I think they’re over-zealous.  They just want to make a trafficking case out of a possession case.  That’s what I’m saying.

Court: Well, you can’t say they’re over-zealous.  You say they’re lying.  It’s a question of - - if they said he made that admission, then it’s whether they are lying or the defendant is lying.  There are not two ways about it.

Mr Pannu: I just wanted to be a bit nice to them.  ‘Over zealous’ actually meant what exactly your Honour said.”  (Appeal bundle p. 123)

26.  There was, we consider, nothing inappropriate about the judge’s approach in this regard and, in fairness to Mr Wong, he did not seek to advance this ground with any great enthusiasm.

Conclusion

27.  For the reasons we have given, the appeal was allowed.  The appellant will remain in custody pending sentencing for the substituted offence of possessing dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance.