R. v. LAI CHECK HONG

1996, No.71
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. (Giving the Judgment of the Court) :

1. The applicant was convicted after trial of trafficking in dangerous drugs and offering an advantage to two police officers. He was sentenced to consecutive sentences of five and one years respectively for these offences.

2. The prosecution case was this. On 14th November 1994, two officers in plainclothes were on patrol. They noticed the applicant acting suspiciously at the rear lane of Pei Ho Street. They stopped and searched the applicant. In his front pocket the officers found 80 small packets containing dangerous drugs. They weighed 16.25 grammes containing 14.89 grammes of heroin.

3. According to the officers, the applicant thereupon took out $5,000 from his pocket and offered it to the officers if he could be set free. The officers said that the applicant was then arrested and cautioned. Upon caution, he made certain verbal admissions. These verbal admissions were subsequently post-recorded at the police station.

4. The applicant gave evidence before the trial judge both in the voire dire and on the main issue. He said that the dangerous drugs were planted on him and that they were not on his person but were found by the police officers inside a lane where his home was. He further said that he had never offered anything to the police officers. He alleged that the cautioned statement taken by the police was not made voluntarily by him. He was forced to sign under threat and violence from the police officers. He said that the $5,000 alleged to be the bribe money was only found when the police conducted a home search on the second occasion.

5. At the end of the trial, the trial judge accepted that the drugs were found on the person of the applicant, that he had offered $5,000 to the officers as a bribe for the two of them and that the contents of the applicant's statement, P4, were reliable and true. He also found that there was ample evidence to support the finding that the drugs were in the applicant's possession for the purpose of trafficking. As a result of such findings, the trial judge convicted the applicant on both counts.

6. A number of grounds of appeal were raised by the applicant. In the first ground, the applicant alleged that initially he was tried in another court and that the judge had "decided not to pass judgment" because he had doubt in the evidence of the witnesses. He complained that the judge then transferred the case to another court. He said he was aggrieved because the judge was "biased".

7. We do not think that is a correct summary of what happened. There was a complete misunderstanding on the part of the applicant of what happened at the first trial although we note that he was represented in the court below on both occasions. What happened in the first trial was this. The applicant's cautioned statement was challenged and a voire dire was held, according to the alternative procedure. At the end of the voire dire, the judge held that he was not only satisfied that the cautioned statement was made voluntarily, but was also satisfied that the verbal admissions which were recorded in the cautioned statement had indeed been made by the applicant. Then the Crown closed its case. There was a submission of no case to answer. The court ruled that there was. Counsel for the applicant indicated that the applicant was willing to give evidence on the main issue. The argument at that stage was whether the applicant should be cross-examined on his own previous convictions. The case was adjourned to the following morning. The judge had apparently reconsidered the matter overnight. He took the view that the verbal confessions should be an issue for the main trial and not part of the voire dire. He said that since he had held the verbal confessions to be admissible without hearing the applicant in defence, he was in error, that is to say, he had pre-judged an issue in the main trial. He invited counsel for the applicant to take instruction as to whether he wished to apply to discharge the judge. Having taken instruction, counsel made the application to discharge the judge and seek a re-trial. The judge acceded to that application.

8. It is quite clear that far from the judge being unable to decide because he had some doubts on the evidence of the witnesses, he was in fact satisfied beyond reasonable doubt that the applicant had signed the cautioned statement voluntarily and without threat or assault and that he had made the verbal admissions. The first ground cannot be sustained.

9. As a second ground, the applicant submitted that the evidence adduced in the second trial was different from that given by the witnesses in the first trial. He was however not able to give details as to what the differences were, although he alleged that the trial judge in the second trial had failed to consider them.

10. It is clear from the transcript and the Reasons for Verdict that the trial judge had been made aware of the discrepancies in the prosecution case. He had considered them in great detail. He referred to the discrepancies regarding the layout of the report room and held that they were due to the partition in the room and the different views of the same place by the officers. He dealt with the evidence regarding whether the offer of bribe was made to one officer or two officers. He resolved this by holding that the money was physically handed to one, but was meant for both officers. The trial judge also referred to other matters which had been omitted in the evidence, but took the view that they were minor matters. He acknowledged that the prosecution evidence was not perfect but found that there was no ground for casting doubt on it. We do not think there is any substance in the second ground.

11. As to the third ground, the applicant submitted that the cautioned statement should not have been admitted. He alleged that he was forced to sign although he was not willing to do so and did not understand the contents. He said that at the time of the statement, he was suffering from withdrawal symptoms and did not have a clear mind as to what was contained in the statement. He was told to sign and in order to avoid further assault by the police officers, he did.

12. Looking at the Reasons for Verdict and the transcript which we have called for, it appears that the trial judge had considered all the evidence regarding the allegations made by the applicant in the voire dire and which were made again before us. We think that on the evidence the judge was entitled to reject the allegations, accept the evidence of the prosecution witnesses and come to the conclusion that the statement signed by the applicant was made voluntarily. We do not think there is any substance in the third ground as well.

13. There is, however, one matter which might cause us some concern. In the Reasons for Verdict, the trial judge appeared on three occasions to refer to evidence given by the applicant in the voire dire when considering the main issues before him. On p.3 of his Reasons for Verdict, he said this :

"We know, from the Defendant's own evidence on the special issue (that is, that he resisted the signing of the tag on the bag containing the dangerous drugs) that the drugs were handed over before the Police search (the second search, according to the Defendant) of his house."

On p.4, he also said :

" Any defects in PW4's record of arrival/departure were overcome by the Defendant's acknowledgment in evidence that he was brought to Sham Shui Po Police Station on two occasions."

On p.5, the trial judge said this :

" The Defendant's credibility also took a blow when he told me that he did not know that these two charges were serious. Further, by way of an illustration drawn from the special issue, his credibility suffered when one contrasts the resistance he put up when asked to sign the bag of drugs with the lack of interest and concern with which he signed the cautioned statement."

14. At pages 3 and 4 of the Reasons for Verdict, the trial judge was dealing with the issue of whether, as alleged by the prosecution, the $5,000 offered by the applicant was offered at the scene of the stop and search or, as alleged by the applicant, picked up by the officers during the second visit to his home. According to the police, the money was handed in on the same occasion as the dangerous drugs. It was handed to PW4, an officer in the police station and put into an exhibit envelope which was not signed by the applicant. It was after that that the applicant was taken for a second visit to his home for a house search. The applicant accepted that the drugs were handed over to the police station before this house search. By referring to the applicant's evidence on the special issue to the effect that he was taken from the police station back to his home, the judge was trying to illustrate that it was not disputed even by the applicant that there was a second house search and that it would follow that the money was in fact not found by the police during the second search. We note from the transcript that the applicant mentioned that there was a second visit to his home not only when he gave evidence in the voire dire (that appeared on p.65) but also when he gave evidence on the main issues (that appeared on p.76). This was a fact which the applicant accepted, both in the voire dire as well as in the main trial. We do not think that the reference by the trial judge to these parts of the evidence could have any bearing on the present application for leave to appeal.

15. With regard to the last passage referred to by the learned judge, there is quite clear authority to the effect that a trial judge sitting as judge and jury is entitled to refer to all the evidence not only in the main trial, but also in the voire dire "to help himself to form an opinion on the quality of the accused as a witness" (see R. v. Ng Chun Kwan [1974] HKLR 319, 325). We do not think it was improper for the trial judge to do so in the present case.

16. In the circumstances, we do not think that there is any substance in this application. It must be refused.