HKSAR v. YAU CHI LUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.271
(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 in this matter faced one charge of trafficking in a dangerous drug. It states that on or about 11th December 1997, at the ground floor of Block 37, Sau Mau Ping Estate, Kowloon, he unlawfully trafficked in dangerous drugs namely, 300 tablets containing 6.15 grammes of midazolam meleate and 84.79 grammes of a mixture containing 30.95 grammes of heroin hydrochloride. He pleaded not guilty to that charge but was found guilty after trial before Judge Toh in the District Court and sentenced to imprisonment for 6 1/2 years. He now seeks leave to appeal against that conviction.

2. The facts were that he was observed by two police officers outside Block 37, Sau Mau Ping Estate. They approached him and, upon search, found the drugs the subject of the charge. One of the police officers told him that he suspected he was carrying something unlawful. When the plastic bags of drugs were found he was asked what they were, he did not reply and the officer then proceeded to caution and arrest him for trafficking in dangerous drugs. The officer said that the defendant then asked that he be given a chance and said that those things belonged to "Pun Nga Chai" and that he was told them to take them to Block 38.

3. Those words were not written down until they had returned to the police station where a post-record was made. The applicant refused to sign that post-record.

4. Both officers were cross-examined upon the basis that the drugs had not been found on the applicant but had been found in a nearby flowerbed and that when the applicant was searched, nothing was found on him.

5. There was a voir dire in relation to a statement which the applicant made at a later time in the police station. Objection was taken to that statement. The judge does not set out the grounds of the objection, and it is not clear from her reasons whether the applicant gave evidence in the trial. He certainly gave evidence in the voir dire and it seems that he also gave evidence in the trial. The judge held that that written statement be not admitted.

6. The applicant in his evidence said that when the police officers approached him, they told him that if they found nothing on him but that, if they found something in the vicinity, they would frame him with it. He said that that was exactly what they, in fact, did as they went to the flowerbed, took out the plastic bags and then alleged that they belonged to him. He said that he objected to this and told the police that they should obtain a fingerprint report but they ignored him.

7. There was no voir dire in relation to this oral admission at the scene. We refer to Thong Jai & Another v. The Queen, (1997) 2 H.K.C. 109, and in particular to the passage at p.126, in which Lord Hutton said when dealing with oral admissions:

"One situation is where the only allegation made by the defendant is that he had not made the alleged admission. The other situation is where the defendant alleges both that he had not made the admission and that he had been ill-treated before or at the time of the making of the alleged admission. In the latter situation the trial judge should hold a voir dire to decide whether (in case the jury find that the admission was made) the admission was made in circumstances which rendered it involuntary."

8. It seems to us clear, and Mr. Wong, who appears for the Respondent, does not argue otherwise that this was a situation in which the judge should have held a voir dire to determine whether the alleged admission was voluntarily made. However, the judge, when she ruled on the evidence that was given in the voir dire, which concerned the later written statement, said:

"The defendant's evidence on the voir dire did not in any way cause me to doubt the truthfulness of the police evidence that no pressure or force was ever applied on him."

9. When the judge came to give her reasons for finding the applicant guilty she said:

"On the general issue, I totally believe the evidence of PW2 and PW3. They were, in my view, honest and gave their evidence without embellishment. In fact, PW2 readily agreed that he had seen the defendant before 11 December and had also searched him. I had therefore no doubt at all that the defendant was indeed seen by them to have taken out the Exhibits P1 and P19 from the flowerbed and that PW2 found them on the defendant. I also find that the defendant in a moment of panic sought to disown the drugs by saying that they belonged to someone else, and later at the police station, as Mr. Mayne submitted, he thought better of it and decided not to sign the post-record. I have no doubt at all that the heroin and the midazolam tablets that were found were for trafficking, for apart from the defendant's own admission, they were packed ready for sale in separate packets."

10. Although the judge's failure to hold a voir dire to determine the admissibility of the oral admission was a material irregularity, we are satisfied that this is an appropriate matter in which to apply the proviso.

11. The application is allowed but the appeal is dismissed.