HKSAR v. LAW YIK LUN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1995, No.352
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced two counts of trafficking in a dangerous drug and one count of manufacture of a dangerous drug. He pleaded not guilty to all counts and was, after trial before Seagroatt J. and a jury, found guilty on each count. He was sentenced to imprisonment for concurrent terms of 22 years, 22 years and 25 years. He now seeks leave to appeal against that conviction and against the sentences out of time.

2. The first count alleged that on 24th December 1993, outside Room 2, 8th floor, New City Centre, No.2 Lei Yue Mun Road, Kwun Tong, he unlawfully trafficked in a dangerous drug, namely 57.04 grammes of a mixture containing 31.05 grammes of salts of esters of morphine. The second count alleged that he unlawfully trafficked in 6,452.01 grammes of a mixture containing 4,924.71 grammes of salts of esters of morphine at Room 2 of the same address. The third count alleged that on the same day at the same place he manufactured dangerous drugs.

3. On 24th December 1993, the police had the premises referred to in the charges under surveillance. It was the prosecution case that at 5:30 p.m. the applicant was seen to go into those premises and to come out at 6:47 p.m. when he was stopped and searched. He was at that time holding the key to the premises. In his jacket pocket, a red laisee packet was found which contained two plastic bags, one inside the other, in which the heroin, the subject of the first charge, was contained. His waist bag was searched and two more packets of heroin were found together with rent and rates receipts. The police say that he was then arrested and cautioned but said nothing. Access was gained to Room 2 using the keys found on the applicant, and a large quantity of dangerous drugs and manufacturing paraphernalia was found therein. The applicant was again cautioned in relation to what was found in the room and he again remained silent. The heroin and the manufacturing equipment were the subject matter of the second and third counts.

4. It was the prosecution case as set out by the judge in his summing-up that:

".... Those premises were leased to the defendant from 1st October 1992 until 30th September 1994. So it was in effect a two-year lease. The monthly rental was to be $7000.

The defendant said, according to the landlady, that he was going to use it as a storehouse. He failed to pay the rent, apparently, in the period September-November 1993, and then paid $21,000, that is three months' rent, in effect in arrears to clear off what was due on 10th November 1993. Under that lease he was liable to pay the rates. He was not entitled to transfer the lease or to sublet."

5. The applicant's evidence is set out in the summing-up as follows:

"He says he was not there at 5.30. That was not he, he says, who the officers were observing going into the premises. He says when he was seen at 6.47 he was arriving at the premises. He was not leaving the premises at all. He was just arriving. And he says, 'There were no drugs on me at all. No drugs in my possession inside my jacket or in my waist-bag. Police officers are lying about that. Actually nothing on me at all.'

And he says, 'The rent and rates receipt were not found in my bag but were inside the premises.' Well, you have got the rent and rates receipt in a copy, and you look at the date on those to see if they help you in relation to a number of matters.

He said he had not been in the premises in effect since he sublet it, and that was some time ago because you will remember the document you have got in relation to the subletting, which the defendant speaks, and I will come back to that in a moment, that appears to be dated 1st March 1993. So we are dealing with December 1993, March 1993 is some nine months earlier. And he said he had sublet it in effect to a friend or colleague, Mr. Cheung, and not been in the premises.

No fingerprints, it is contended, and it is perfectly true, that no fingerprints of his were found inside the premises.

And he produced to you that document which he says there is an agreement made in March between himself and Mr. Cheung Tai-fu. And it is entirely up to you as to what you make of it. Entirely up to you.

He said the friend had failed to pay most of the rent. He was chasing him for a total of something like $32,000, at the rate of about $8000 a month. He only had $10,000 from him, being paid by him over that particular period. And although he had a set of keys after the subletting, he had not been inside the premises.

He said he went there on 24th December only because having finally contacted his friend, he had made some contact on earlier occasions when pressing him for the rent, particularly after August of 1993, he said he went to the premises because he understood from contacting Mr. Cheung that Mr. Cheung would be at the premises as well. And as he indicated, and I indicated to you earlier, he said he was arriving at the premises at 6.47, not leaving them.

He says he tried to tell all this to the police, but the police were not interested in anything he had to say. He is saying that there was in fact much more conversation between him and the police officers about the position generally.

He says, in effect, 'They have framed me, saying that I had heroin in my pocket and in my bag, and had the receipt in my bag.' He says, 'They were not willing to investigate what I was saying, and I was slapped on the back of my head once during the course of the discussion and conversation at the police station. They told me if I did not co-operate I would be given a hard time. I feared being hit so I simply signed where told to,' and that relates to the two records of the short conversations that you will remember you have, that were recorded by the police officer. The one conversation at the time that he was arrested for possession of the heroin on himself, that is, the police officer says, inside his pocket and inside the bags; and the other when he was arrested and cautioned, the police officer says, inside the premises when they had seen what was there.

Now the police officer says he made those records at Kwun Tong Police Station, invited him to sign them as a true record, and he says that the defendant did so. They do not admit anything - those two documents - at all. The defendant says, 'Well, in fact I signed them only because I feared being hit, and I thought it was a statement concerned with antecedents, my sort of background generally, family, where I live, jobs and things like that.'"

6. There were eight grounds in the Re-Amended Perfected Grounds of Appeal Against Conviction. We asked Mr. Harris, who appeared for the applicant, to deal firstly with Ground 2 which read:

"Learned defence counsel was wrong, contrary to the Applicant's instructions and in the face of the Applicant's interests, not to challenge the admissibility of Exhibits P124 and P125 on the basis that the Applicant had not signed these documents voluntarily in that his signature had been procured by earlier violence, inducements and/or deception. In the circumstances it is contended that, notwithstanding the lack of any admission of guilt by the Applicant on the face of either exhibit, counsel failed in his duty to advise the Applicant of the probable adverse impact upon the jury of these exhibits.

7. Ground 3(a), relying upon the test set out in R. v. Ensor 89 Cr.App.R. 139, alleges that the matters complained of in Ground 2 amounted "to flagrant incompetence on the part of learned defence counsel".

8. Exhibits 124 and 125 are post records of the caution administered outside the premises and of the second caution administered inside the premises. It is important to set out Exh.124 in full. It reads at follows:

"Law Yik-lun, I am Police Constable 49205 Lam Chak-fung and currently attached to Special Duty Squad II of Kwun Tong Police District. Now, I post record a cautioned statement from you in respect of the course of arrest which I made on you at 6:50 p.m. on 24.12.1993 outside Room No.2, 8th floor, No.2, Lei Yue Mun Road. At that time, I said to you, 'I am Police Constable 49205 Lam Chuk-fung and currently attached to Special Duty Squad II of Kwun Tong Police District. I now arrest you for the offence of 'Possession of Dangerous Drug' because I found one red laisee packet from the left-concealed pocket of the black leather jacket you were wearing. This laisee packet contained one packet of white powder double sealed by two layers of transparent plastic bag, which was suspected to be dangerous drug. After that, inside a black leather bag that you were carrying, I found one yellow paper envelope. This paper envelope contained one packet of white powder double sealed by two layers of transparent plastic bag and one laisee packet contained one packet of white powder double sealed by two layers of plastic bag, which were also suspected to be dangerous drug. I now caution you. You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.' After being cautioned, you did not give a reply.

Law Yik-lun, at present, it is 3 a.m. sharp on 25.12.1993. Now, I show you the above record of interview, consisting of two pages for you to read, and I also read (it) over to you. You can add, delete or correct anything you wish. If you agree the above post recording cautioned statement, please sign your name as confirmation.

I, Law Yik-lun, have read the above record of interview, consisting of two pages. It is an accurate record of questions asked, and answers I provided.

(Signed) Law Yik-lun (Signed) PC 49205 (Illegible)

Law Yik-lun, it is 3:15 a.m. on 25.12.1993 now. I now give you the duplicate copy of this record of interview, consisting of two pages. Please sign your name as confirmation.

(Signed) Law Yik-lun (Signed) PC 49205 (Illegible)"

9. The statement records what the police officers said occurred outside Room No.2 at 6:15 p.m. and details the drugs that were said to have been found at that time.

10. PC 49205 was the first prosecution witness. He gave evidence that at 5:30 on the afternoon of 24th December 1993, he saw the applicant enter Room 2 and that at 6:47 p.m. he saw him emerge from that room. He said that he then went up to him, produced his police warrant card, revealed his identity and said, "I suspect that you possess dangerous drugs. I want to conduct a search on you." He said that he found the keys to the flat in the right hand of the applicant and the applicant said that they were to open the main doors. He searched the jacket of the applicant and found some dangerous drugs and a red laisee packet and then found more drugs in a black leather shoulder bag. He said that he arrested the applicant for possession of the dangerous drugs and that the police party then entered Room 2 using the keys. There was no mention in the evidence in chief of the caution and its post recording. Mention of it only came about because of the course taken by the cross-examination.

11. Mr. Wong, who appeared for the applicant, put to the witness in cross-examination that the applicant had only arrived at the premises at 6:45 p.m. The following exchange then occurred:

"Q. And how many other keys were there?

A. I found in his palm two keys. As to other keys, I cannot remember.

Q. Up to that point did you have any form of conversation with the defendant?

A. Yes, I asked him where the two keys could open.

Q. Apparently the defendant had given you the answer, right?

A. Yes.

Q. Apart from that conversation, was there any other conversation between you and the defendant?

A. Up to what stage?

Q. At that stage when you intercepted the defendant and before you brought the defendant into the premises, during that period of time any conversation?

A. No."

12. It might be true that there was no conversation but there was a caution to which no reply was made.

13. Later in the cross-examination, the following exchange occurred:

"Q. Let me put another bit of defence case to you, officer, and see if you agree with it. The reason why before the defendant was being brought into the premises and no questions were asked to the defendant about the intended use of the dangerous drugs allegedly found on the defendant, simply because there was no drugs found on the defendant?

A. Disagree."

14. It was further put, and denied, that the rental receipts and the rate notice were not found in the black bag but were found inside the premises near a cupboard. Mr. Wong went on to put to the officer that inside the premises the applicant had been ordered to squat down and the officer had said:

"Well, there was no need for denying any more. The receipt clearly stated that you are the one who is involved with these premises."

This was denied. Mr. Wong put that when the applicant denied having had anything to do with the drugs, the officer had slapped his head and said:

"You still have time to tell us more, or else when the reporters arrive can we say to the reporter that we got the wrong guy."

15. Consequent upon this cross-examination, Mr. Hagon, who appeared for the prosecution, in re-examination asked the following questions:

"Q. Did you tell this man, did you caution this man outside the premises?

A. Yes.

Q. After you cautioned him what did he say?

A. He did not say anything in reply.

Q. You told us that after you saw all the paraphernalia of the drug manufacture in the premises you arrested him on suspicion, of manufacturing dangerous drugs, you have told us that, and you said you cautioned him?

A. Yes.

Q. Did you use the similar words of caution on that occasion as you have told us you said outside the premises?

A. Yes."

16. Mr. Wong was then allowed to further cross-examine the officer when the following exchange occurred:

"Q. Officer, in relation to the two cautioned statements that you took from the defendant, isn't it correct that in the normal course of dealing with any person in custody you always take a background statement - what we call the antecedent statement from the defendant?

Mr. Hagon: My Lord, with respect I understood my learned friend was asking about statements ---

Court: I am just waiting to see where we are at the moment. Carry on, Mr. Wong. You are saying the background, the antecedent statement?

Q. Is that correct, that as a police officer you usually have to take an antecedent statement from the defendant?

A. Yes.

Q. Did you take any in this particular case?

A. I cannot remember clearly whether it was I who took that antecedent statement from him, or my colleague.

Q. I put it to you officer when you asked the defendant to sign the two cautioned statements in question you were telling the defendant that this is just the antecedent statement?

A. Disagree."

17. This was the first mention of written signed statements. The following exchange then occurred in the presence of the jury:

"Court: I am just wondering about whether you are seeking to adduce as exhibits ... I was wondering whether the jury would be confused as between the question of antecedents statement and what these so-called 'cautioned statements' are.

Mr. Hagon: My Lord, I have no objection to the jury -- The antecedent is irrelevant to this particular matter. What is relevant, I think perhaps my Lord, is that the antecedent statement, which the Inspector has very expeditiously got for me, allegedly commenced at ten minutes past four in the morning. The final record of the post-record, or the cautioned statement, finished at three minutes past four. So the record would show that the two cautioned statements were completed very shortly after 4.00 o'clock and, as is usual, thereafter an antecedent statement - which is a normal course and there is nothing sinister about it whatsoever - was then taken, my Lord.

The allegation has been put that presumably all documents had been finished and he was duped into thinking that he was signing an antecedent statement. The difficulty there of course is that he has written in his own fair handwriting at the bottom of the cautioned statement.

Court: I was slightly confused at this state in relation to antecedent and what are referred to as 'cautioned statement'. It is not a term that I recognize as a strict description for these particular documents; the record the officer made at the station of a conversation that had taken place at the scene, limited though it was. The members of the jury may well wonder what on earth are we talking about here. We haven't seen them. There is a reference to his having written something in his own hand and it is not a case where the translation has been agreed of the original Chinese record. Is that right Mr. Wong, or not?

Mr. Hagon: My Lord, they are exhibits. You will have the originals there and certified English translation thereof.

Court: I have got my copies of the English translation and in fact they have been certified by a Court Translator, so I assume Mr. Wong there is no dispute about that?

Mr. Wong: I am not challenging the admissibility of the cautioned statement.

Court: I think it would be better because, although I have got the benefit of seeing them, had I not got the benefit of seeing them I might have wondered, well what are these statement that were signed by the defendant. The jury might find it helpful to see precisely what you have been asking about and what Mr. Wong has been speaking about and what the officer has been speaking about.

Mr. Hagon: Perhaps this officer could formally produce those two documents.

Court: I dare say copies won't be available at the moment, will they?

Mr. Hagon: I think normally they should be.

Court: Yes, we have. Members of the jury, you will no longer be in the dark. You will see what document it is that is being referred to and it will be in the original Chinese photostat and also a photostat of the English translation. What is the exhibit number?

Mr. Hagon: They may tentatively be down on the exhibit list.

Court: Yes, they are.

Mr. Hagon: 124 and 125, my Lord." (Emphasis supplied.)

18. Mr. Hagon then read the statements in English to the jury and the witness read them in Cantonese.

19. Mr. Wong, as can be seen from the passage set out above, stated that he was "not challenging the admissibility of the cautioned statement". It is clear from his cross-examination that the case of the applicant was that no drugs had been found outside the premises, that no caution had ever been given, that he had been threatened whilst still at Room 2, and that he had been tricked into signing both cautioned statements.

20. The fact that a cautioned statement was administered outside Room No.2, even though no reply was made to it, was powerful evidence supporting the sequence of events which the prosecution contended had occurred on that evening. The applicant in an affirmation of 4th April 1997 stated:

"During preparation for the trial, I did mention the two statements to my counsel and my solicitors, and described the circumstances when I signed them. They told me that even if the two statements were produced at the trial, they would be harmless, and therefore I should not be concerned about them at all."

21. His counsel, Mr. Wong, filed three affirmations prior to these appellate proceedings in which he said that instructions had been sought from the applicant as to whether or not to challenge the admissibility of the cautioned statements, and that he had been instructed that he "should not challenge the issue of voluntariness should this issue arise".

22. Mr. Wong was cross-examined on his affidavits before this court by Mr. Harris for the applicant. It was put to him that he had instructions that the signature was not voluntary. To this he said: "Not really, no, I did check with him and that if the issue was brought up not to challenge. My instructions were that it was not voluntary". He said that he took the view that the post-recorded statement was not damaging. He agreed with Mr. Harris that it was his view "that there was really no harm in the jury seeing the documents". He agreed that it did not occur to him that anyone would read into the document an adverse admission of any kind. He said that the defendant told him that the main reason he signed was because of an experience with the police with 1973, and he then told him that it would be better not to challenge the admissibility of the cautioned statement if it did become an issue in the trial as this might result, were he to give evidence in the voir dire, in the disclosure of his previous record. The following exchange then occurred:

"Q. Did you say to the applicant that in your view the documents were harmless?

A. I cannot remember but I would say that, more than likely I said that.

Q. It was the fact that the documents were harmless rather than involuntary that guided your decision.

A. You could put it that way.

Q. The applicant took your advice and it is your evidence that he gave you specific instructions not to challenge the admissibility.

A. That's right."

23. It is correct that the applicant made no admission regarding the drugs and other things said to have been found on him outside the premises. The post record did, however, make the following admission:

"I, Law Yik-lun, have read the above record of interview, consisting of two pages. It is an accurate record of the questions asked, and answers I provided."

24. This admission was gravely damaging to the defence. It admitted the existence of a sequence of events which the prosecution witnesses said had occurred but which was denied by the applicant. That sequence, if established, effectively destroyed the defence case. It seems clear to us that there was a failure by counsel to comprehend the potentially fatally damaging nature of the evidence.

25. A decision whether or not to challenge a cautioned statement in voir dire proceedings is normally a matter for counsel. There may be good reasons why counsel considers it in its client's best interest to have the matter ventilated for the first time in front of the jury. It would be difficult on appeal to challenge such a decision by counsel, particularly so where there were instructions from the defendant that he was in agreement with that course.

26. That, however, was not what occurred in the present case. Here the indication that there would be no challenge to the statement came because of a failure to comprehend the potentially fatally damaging nature of that evidence. Counsel and the applicant, upon counsel's advice, proceeded upon the basis that Exh.124 was "harmless".

27. Moreover, as can be seen from the foregoing, there were clear grounds upon which the cautioned statement could have been challenged. It could have been submitted that it was obtained both by threats and ill-treatment and by trickery. The former would have been a ground for excluding it as involuntary and, had the latter not been disproved, the judge would have been bound to have exercised his residual discretion to exclude it.

28. Mr. Bruce, for the respondent, contends firstly that the statement could not be construed in any way which would damage the applicant. He says that, at most, the admission was of the asking of a question to which there was no reply. We do not agree. As we have indicated above, the admission that the exchange took place was, we are satisfied, potentially fatally damaging to the defence. Mr. Bruce argues that if this be so, the potential damage was set at naught by the direction of the judge at the end of his summing up when he said:

"Now the police officer says he made those records at Kwun Tong Police Station, invited him to sign them as a true record, and he says that the defendant did so. They do not admit anything - those two documents - at all. The defendant says, 'Well, in fact I signed them only because I feared being hit, and I thought it was a statement concerned with antecedents, my sort of background generally, family, where I live, jobs and things like that.'"

29. We cannot agree that this set at naught the potential damage. Indeed we are left in doubt as to what the jury would have made of this direction. We are satisfied that the potential damage resulting from the failure to challenge the admissibility of the oral statement and its post recording remained.

30. The advice from counsel was manifestly wrong and should never have been given. We are satisfied that his conduct did cross the threshold referred to in R. v. Ensor.

31. We cannot regard the conviction as being either safe or satisfactory. The appeal must succeed and the conviction is ordered to be quashed.