HKSAR v. LAW KAI MAN

CACC408/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 408 OF 2007

(ON APPEAL FROM DCCC NO. 501 OF 2007)

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    REASONS  FOR  JUDGMENT

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Hon Saw J (giving judgment of the Court):

1. On 15 November 2007 the applicant was convicted after trial of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to be imprisoned for 5 years.

2. On 21 July 2010 we dismissed his application for leave to appeal conviction and indicated that we would hand down our reasons in due course.  These are our reasons.

3. The prosecution’s case can be succinctly stated.  Two police officers (PW1 and PW2) were on patrol in the general vicinity of Reclamation Street, Mongkok in Kowloon on 28 November 2006.  At about 10:30 pm they saw a male walking towards them.  When they were within 2 metres of the approaching male, he suddenly turned right into a doorway at No. 473 Reclamation Street.  This conduct they considered to be suspicious so they followed.  Once inside the building this person began to run.  One of the police officers shouted to him “Police!  Stand still”, but this was to no avail so the police officers set off in pursuit.  PW1 and PW2 described how they chased the fleeing male up the staircase of No. 473 Reclamation Street.  PW1 told the court that at no time did he lose sight of this man, whereas PW2 who was in the rearconceded that from his position he had from time to time lost sight of the person they were chasing.  Throughout the chase PW1 continued to shout out that they were police officers.  The evidence of PW1 and PW2 was to the effect that eventually they were able to apprehend this man at the 9/F landing inside the stairwell.     It was their evidence that the person they chased and eventually apprehended was the applicant.

4. It was not a matter in issue in the trial that the applicant was intercepted and eventually arrested by PW1 and PW2.  It was the evidence of PW1 and PW2 that having intercepted the applicant he was told that he was suspected of being in possession of dangerous drugs.  He was searched and in the waistband of his trousers they found a package wrapped in newspaper which was found to contain a number of resealable plastic bags.  Inside the plastic bags there were pellets which they suspected contained dangerous drugs.  That suspicion was well founded.  A subsequent analysis of the contents of the resealable plastic bags revealed that they contained 26.54 grammes of a mixture containing 11.06 grammes of heroin hydrochloride.  The applicant was arrested and under caution said:

“Ah sir, my business failed, I owe some money.  I dragged the white powder for somebody, give me a chance.”

Both officers said that they immediately made a note of the applicant’s statement in their respective notebooks.

5. The applicant for his part recounted a very different version of the events of that night.  The judge in his reasons for verdict summarized this as follows:

“15.   The issues in the case are best exposed by outlining the defendant’s account in evidence on the general issue and the special issue together.  The defendant says that he was a computer mechanic by trade and it was his practice to solicit customers by leaving business cards under the doors of apartments.  He called a witness, Mr Lee Yuk-ling, to say that in July 2006 he had been so solicited by the defendant at his home in Wah Kwai Estate near Aberdeen and the defendant had done some computer repairs thereafter.  An example of the defendant’s business card was produced as Exhibit D2 and D2A.

16. The defendant’s case was that on the evening in question, he had been involved in certain activities in the Mong Kok area including visiting a computer mall and he was returning to his car parked in Bute Street when he went into the building in question to post some cards under people’s doors.  He made his way up the stairs as he did so.  When he arrived at the fifth or sixth floor, he heard the sound of running behind him followed by a bang which came from within the building.  There was then silence for a while.  He continued upstairs and he reached about the seventh floor when he heard the sound of rushing feet coming up the stairs.  He returned his wallet with its cards to his pocket.  He suggested that he felt apprehensive at the approach of someone.  He went up to the eighth floor landing, that is one level below the landing adjacent to the roof, to await developments.  Suddenly a black shadow, presumably PW1, appeared in the gloom and he was grabbed by the neck and forced down onto the stairs between the eighth and ninth floors. 

17. Another person, PW2, arrived and he was asked, ‘Does this packet belong to you?’, and then a third person arrived, apparently the sergeant, who asked him where he put the drugs or where he had got them from.  The exact terms of this exchange were not explored in much detail in the evidence.  He was told to give the information and he would be released but he ignored what was being said and was handcuffed.  A female resident appeared and asked in effect what was going on.  She was told they were police officers.  The presence of this lady was denied by the officers.  The defendant said he told the officers that he was distributing business cards but they ignored him.  At no time did he have the newspaper package with dangerous drugs in his possession and, consistent with that, he did to make the alleged admission.”

6. It was the prosecution’s case that the applicant was taken back to police station where a post record of his response to his arrest was read over to him and acknowledged by him in writing to be voluntary.  This was not accepted by the applicant.  It was his case as the judge summarized that:

“18.   Back at the police station, the defendant was asked questions by PW1 who was told to make admissions.  He was asked about triad involvement and was told that if he admitted he would “only go to gaol for several years”, but if he denied it there would be extra years and a lawyer would be of no help to him.  He was told to co-operate so as to leave early and to answer yes to any questions directed to him from an expatriate officer.

19. Later, the pocket notebook was produced.  He was told that it was for police records, nothing special.  He was told to copy the declaration and that there would be no problems.  He agreed to do so without being aware of the contents of the post-record in the notebook.  He signed against corrections as directed.  The defendant then described PW3 entering the room and eventually directing that the pocket notebook be read over to the defendant.  This was done by PW1.  The defendant said that he disagreed with the statements attributed to him.  He was told to keep quiet by PW1 apparently in the presence of PW3.  Despite his protests, he was told that as he had already signed the pocket notebook it would be regarded as true.  He was given a copy.

…

22. In summary, the defendant’s case was that it was not he who had been spotted on the street by PW1 and 2 and not he who had been followed into the building.  Someone else had gone in and had been followed by the police.  That person, and this could be the only purpose of the defendant’s claim to have heard a bang, had got off the staircase through a door which had slammed shut.  There had then been a substitution of the defendant for this other man, either because the police had not realised that their quarry had got off the staircase through a door and had made a mistake in intercepting the defendant, or because they had chosen to ignore that fact and had intercepted the defendant anyway.  The defendant asserted that the officers had then planted these drugs on him, not necessarily producing them there and then in the stairwell, because he claimed that he first saw them in the police station, but in any event, he did not have the drugs which the police said were tucked into his waistband.”

7. Thus it was that the live issues in the prosecution case were in a narrow focus; namely was the police officers’ evidence of identification reliable and were they being truthful when they described the events which took place after the interception of the applicant including his signing the entry in the police officer’s notebook which amounted to a confession to trafficking in dangerous drugs?

8. In this regard the judge found that both PW1 and PW2 were reliable and honest witnesses.  He accepted that it was the applicant who they had first observed in Reclamation Street and who they pursued and ultimately intercepted.  He said:

“I find the suggestion that the two officers substituted another random male for the actual object of their chase to be wholly unbelievable.”

9. Insofar as the statement made at the scene of the applicant’s arrest, the judge said:

“I have no doubt that he gave the answer which the officers have recorded.  I am sure that the defendant signed the post record voluntarily, that he was not bullied or put under improper pressure and that the admission into the evidence of his answer after cautioning is not unfair to him.”

This application

10. The applicant is represented by Mr Robert Y.H. Pang and Kelvin K.H. Liu, both assigned by the Bar Free Legal Service Scheme.  There are 2 perfected grounds of appeal.  They in effect arise out of the same course of events and can properly be taken together.  They amount to a submission that the applicant’s conviction is unsafe and unsatisfactory because the judge refused to grant to the applicant an adjournment to arrange for two witnesses to be called in the defence case. 

11. In support of this, there is before us an affirmation of the applicant and a Notice of Motion, both dated 24 April 2008.  The Notice of Motion requests this court to grant leave to the applicant to produce and this court to admit additional evidence pursuant to section 83V Criminal Procedure Ordinance, Cap. 221.  The evidence consists of:

(1) a witness statement of Wong Loi Heung dated 15 October 2007;

(2) an undated witness statement of Wong Loi Heung made around November 2007;

(3) a witness statement of Liang Zhenghui dated 16 October 2007; and

(4) a witness statement of Liang Zhenghui dated 10 November 2007.

12. The substance of the applicant’s complaint is that the two persons named in the Notice of Motion could have given evidence in the applicant’s favour as to material issues in the trial, namely:

(i)  the circumstances surrounding the applicant’s arrest; and

(ii)  the credibility of PW1 and PW2 .

13. Looking first at the circumstances surrounding the request for an adjournment, the applicant, in his affirmation, states:

“3. The makers of these 4 witness statements, Wong Loi Heung (黃來香) and Liang Zhenghui (梁正輝)(‘the 2 Witnesses’), were living at the building where I was arrested and they were present or were in the vicinity at the time of my arrest on 28 November 2006.

4.   My solicitors at the time, Wong, Fung & Co., had visited the 2 Witnesses to take the abovementioned witness statements and they both agreed to be my defence witnesses at my trial which was listed for 4 days beginning 12 November 2007.

5.   Originally, it was arranged for the 2 Witnesses to attend on the 4^th day of the trial i.e. 15 November 2007, however, the proceedings progressed quicker than anticipated and, on the 2^nd day, it became clear that they were required to attend on the 3^rd day of the trial.  They could not make it on the 3^rd day because of their work commitments.

6.   Since the 2 Witnesses were unavailable on the 3^rd day and His Honour Judge Mackintosh refused to allow an adjournment in order for the 2 Witnesses to attend on the 4^th day of instead, the evidence of the 2 Witnesses was unavailable for my trial.

7.   I was advised by my legal representatives that I had the choice of either having the 2 Witnesses arrested or not to call them at all.  Eventually, I decided not to call any of the 2 Witnesses because I did not want to have arrested 2 good and ordinary members of the public who wanted to help and could not come to court through no fault of their own.”

14. This was however not what the judge was told by Mr Laskey the applicant’s counsel.  The following exchanges took place in the latter part of the 3^rd day of the trial:

“MR LASKEY: …with regret, because it’s certainly not convenient, particularly I know it’s not convenient for the court and it’s not particularly convenient for the defence, though that has less importance.  I have to make an application to ask the court to adjourn this matter until 9.30 tomorrow.

  Your Honour, the messages we’ve been getting are obviously through telephone calls, and the matter can be further substantiated if we are allowed the adjournment.  But what we understand is that both witnesses - who do, in fact, live together, although not as husband and wife as we understand - have been approached on two occasions in the last couple of days.  They, at least, believe it’s to do with their attendance at court, and they are frightened.  They have had it made plain to them that they have an obligation, a serious legal obligation to attend.  They say that they are still frightened.

  But it is confidently expected that, especially since my instructing solicitor who, if I may say so, has worked very very hard on this case, he is able to see them tonight to persuade them that they must not be frightened and they must come to court.  I should say they are at work, that the one who she’s been talking to, the male, has been expressing his views.  The female, she doesn’t have any work line number for her, but she’s been talking to the man.  The...”

And shortly after this:

“MR LASKEY:  So we are asking to have, in effect, the rest of the day to secure the attendance of either one or both of these witnesses.  We would rather not do so by asking the court to go out and have them arrested.  Because, apart from anything else, it might well be they have to be detained overnight or brought to court later in the day.

I do have instructions that in the absence of really outstanding, almost act of God type reasons, that if we are not able to bring a witness here tomorrow morning we will close our case.  If we are, we will conclude with that witness, and I, at least on behalf of the defence, will be ready to make my submissions immediately.  May I just make this point, that that would be -- we are now just short of the second full day of appearing in this case having started at midday on Monday, and that tomorrow would therefore be into the third day of the hearing of this case which has been listed for four days.  Now, I am not saying that of itself is...

COURT:  I think this is the third day, isn’t it? 

MR LASKEY:  Well, we have just completed two full days of hearing. 

COURT:  Yes.  Now, these are the two witnesses, are they...

MR LASKEY:  Yes.

COURT: ...that I’ve been shown the witness summons for...

MR LASKEY:  Well, I haven’t looked...

COURT: ...dated 3 September.  And I assume those have been served.  Is there a certificate of service somewhere?  I must tell you, Mr Laskey, I am not prepared to have this court held to ransom by people who don’t want to turn up at court.  And these witnesses must be made aware they have an obligation to be here...

MR LASKEY:  Yes.

COURT: ...and their failure to be here without a reasonable excuse makes them liable to sanction. 

MR LASKEY:  Yes.

COURT:  It’s only expressed in the Criminal Procedure Ordinance as being up to 2 years’ imprisonment.  Of course I am not suggesting for a moment that the court take such a course, but they are liable to sanction.  And the court, in order to enforce its orders properly, would have to enquire into the issue of whether their failure to attend is a failure without reasonable excuse...

MR LASKEY:  Yes.

COURT: ...were it to be proved they’ve been properly served and that they should be here, which I apprehend from what you say is the case.  I do emphasise that none of this reflects in any way on the defendant or the quality or substance of the defendant’s case, but the court does have a duty to enforce its orders, and I am not simply going to sit back and say, ‘Oh, well, we’ll adjourn for the convenience of people who need to be persuaded to be here,’ when they’ve been served with court orders telling them to be here.  Now, I’ll be grateful if your solicitors would communicate that.

MR LASKEY:  Yes.

COURT:  The longer the court has to wait, the more difficult it might be to deal with -- or more difficult it might be for their position at the end of the day.

MR LASKEY:  Yes.

COURT:  And I don’t want that to -- I don’t want matters to get worse from their point of view.  And I think they need to be told that in the clearest terms.

MR LASKEY:  You order compliance, yes.

COURT:  So if they are within the Territory there is no reason why they can’t be here this afternoon.  And I am not prepared to adjourn until tomorrow.  If they are not here this afternoon I will ask for service to be proved on this matter.  So I’d like your instructing solicitors to locate and identify the bailiff who served the summons.  It will probably be a bailiff.  It might be a police officer.  But whoever it is who served the summonses, I’d like that person to be identified and, if possible, located and brought to court, if necessary.  It’s important that the District Court isn’t sort of brought to a halt in this way.  We can’t do that.  It’s extremely expensive to run the District Court.  It’s public funds, and we are not going to do it.

MR LASKEY:  Your Honour, I -- well...

COURT:  No, I am not going to adjourn until tomorrow.  I’ll stand it down.  I want these enquiries made.  I want a report before 1 o’clock as to what the situation is, please.”

15. Mr Laskey informed the judge that the witnesses were reluctant to attend court notwithstanding that such had been summonsed to appear.

16. The following exchange then appears in the transcript :

“COURT:  And when was the last contact made with the female witness?

MR LASKEY:  Last night.

COURT:  And that witness evinced the reluctance to attend?

MR LASKEY:  Yes, saying she was frightened because certain visits she said had been made to her premises.

COURT:  And when was the last contact with the male witness?  That was today, as I understand it.

MR LASKEY:  That’s today. 

COURT:  And he has also evinced a reluctance to attend. 

MR LASKEY:  Yes.

COURT:  But what is the reason for that?

MR LASKEY:  Again he says because visits have been made to the rooftop and to his -- including his premises, which are now on the rooftop.  He’s moved since the occurrence of this...

COURT:  Has that witness been - because he’s been contacted - been reminded of his duty to be here this morning?

MR LASKEY:  Yes, I believe he has.

COURT:  Yes.  Well, Mr Laskey, I am going to put you to your election.  Either you are asking for proof of service of these witnesses to call their attendance -- for the court to oblige their attendance or you are not.  I am not prepared to wait till tomorrow.  The reason I am not prepared to wait till tomorrow is that we don’t know what’s going to happen tomorrow.  If they don’t turn up tomorrow, and then you say on your instructions tomorrow, which you may well receive, ‘I want them to be obliged to come here,’ then there is a further delay in matters, which is unnecessary.

  And so far the half morning, or at least the latter half of the morning has been lost to the failure of these witnesses to be here.  And we have an afternoon before us which might also be lost.  And I am not prepared to wait for that.  It seems to me that you need to determine whether or not you are asking for these witnesses to be brought here.  I have made it very clear, I hope crystal clear, that bringing witnesses, obliging witnesses to attend, is not in any way a reflection upon the defendant or his case.  It happens with prosecution witnesses sometimes, and sometimes it happens with the defence witnesses.  I say that you know it, but I say it so that your client hears what I am saying.  And I am not prepared simply to adjourn matters till tomorrow.

MR LASKEY:  My Lord, in answer to what you said earlier, as I’ve already said, it seems to me the position would be very different tomorrow morning in the sense that the defence had their chance to get these witnesses here...

COURT:  Yes.

MR LASKEY:  ...to have my solicitors contact them again and see them overnight when they are back at home, and then to be able to bring them.  If we couldn’t bring them tomorrow, then I accept the position would be very different.  I had instructions not to renew.  But that does not stop my client saying he wishes to change those instruction.  Those are the instructions I mentioned to the court earlier today.  As to the fact that we are now required to make our election, may I just take one moment’s instruction...

COURT:  Well, I am prepared to stand the matter down till 2.30 for you to consider that, if you wish me.

MR LASKEY:  Well, I think it can either be done now or not at all. 

COURT:  Well, I think you need to consult your client.  I’ve made that clear, I think you need to consult your client on this, Mr Laskey.  Because otherwise...

MR LASKEY:  I have instructions at the moment.  If they are required to be brought here by way of arrest he doesn’t want to call them.

COURT:  Well, I want you to speak to your client in light of what I’ve just been saying, because I’ve been saying things that he can hear.  And I want you to have the opportunity to do that.  So I am going to rise.  What I’ll do in the first instance is rise for five minutes.  If you need longer time, you ask for it.  Come back in 5 minutes.”  

The court then adjourned at 12:58 p.m. and resumed at 1:04 p.m.:

“COURT:  Yes, Mr Laskey.

MR LASKEY:  Your Honour, I ask that in respect of the witness Wong Lai-heung, that the witness -- whatever means are available to secure the attendance of that witness be undertaken.

COURT:  Yes.  Well, and that’s -- is that -- that’s the lady, is it?

MR LASKEY:  Yes.”

When the judge returned to the court at 2:30 p.m., the following exchange took place:

“MR LASKEY:  Your Honour, my client has given me further instructions...

COURT:  Yes.

MR LASKEY:  ...over the luncheon adjournment.  He does not wish to have procedures undertaken to secure attendance of witnesses.  He wishes -- he instructs me to close this case. 

COURT:  So the defendant elects not to call further witnesses.  Is that clear?

MR LASKEY:  That’s right.

COURT:  And the defendant understands.  I want to -- because of the way in which matters have proceeded I do want to be quite explicit about this.  The defendant understands that the court is both willing and able to take appropriate procedures, whatever they should be, to secure the attendance of witnesses.  He understands that, doesn’t he?

MR LASKEY:  I am sure.  And it’s been translated for him, so...

COURT:  I want your confirmation, Mr Laskey, because of the course which you have taken where the defendant has said, ‘I want to call the witnesses,’ and he’s given instructions that he wishes witness summonses to be issued.  Those witness summonses have been issued.  I am told they have been served.  The witnesses have not attended.  And he is entitled to ask the court to do its best to secure the attendance of the witnesses if he wishes.  He is equally entitled not to -- to instruct you, as you tell me has, not to.

MR LASKEY:  He has.

COURT:  But I wish to be, you know, be explicit about it in those terms. 

COURT:  So, now that means that on those instructions, Mr Laskey, the defendant’s case is closed.

MR LASKEY:  I said that, yes, I close the case.”

17. Both Mr Laskey and his instructing solicitor Ms Cheng Fung Yee Jesse have prepared and filed affirmations which are in line with what Mr Laskey said to the judge.  

18. The applicant in his affirmation has said this:

“8. I have had read and explained to me the part of the transcript of my trial when my counsel Mr. Edward Laskey suggested that the 2 witnesses were frightened having been approached over the previous 2 days.  I did not at the time have any reason to doubt his submission, as the arrangement for the 2 Witnesses to come to court as well as further contracts with the 2 Witnesses during the course of the trial had been undertaken by my then solicitors.  I have subsequently been advised by my present legal advisors, counsel appointed by the Hong Kong Bar Association Free Legal Service Scheme, that the 2 Witnesses have told my present legal advisors that they did not tell my then legal representatives that they had been threatened.  I believe that a misunderstanding had occurred.  I raise this matter to avoid any misunderstanding of the position.”

19. In a letter dated 11 March 2010 the applicant’s present solicitors have advised this court that he no longer wishes to rely on paragraph 8 of his affirmation (para. 18 above). 

20. The judge was told that the witnesses refused to attend, not that it was inconvenient for them to do so.  The applicant now accepts this.  In those circumstances the focus of the judge was on doing what was necessary to ensure their attendance.  Whilst each of us may well have allowed a limited adjournment given that the trial was ahead of schedule, that the adjournment sought was for effectively only half a day, and that defence counsel had made clear that if the witnesses did not attend court the following morning he had instructions to close the defence case, the course adopted by the judge was in the circumstances which were presented to him entirely within his discretion.

21. As the judge rightly observed, the evidence of the one witness that the applicant eventually sought to have attend was of marginal, if any, relevance.  The judge for his part addressed the possible impact of that witnesses’ evidence and concluded that taken at its highest it did not cause him to doubt the evidence of PW1 and PW2 which was the critical issue for him to determine.  He said:

“44.   I also note that the defendant issued two witness summonses in respect of residents at the Reclamation Street building.  Those prospective witnesses, though warned, did not come to court.

45. One was the woman whom the defendant alleged had emerged from her flat asking what was going on.  The police officers denied that any woman had come out.  I need to say firstly that the issue of the presence or otherwise of this woman has no impact on the determination of the issues in this case.  It is not alleged that she participated in a meaningful way in what was going on or that her evidence would have been determinant in any particular way.  Given the lapse of 12 months between the events and trial, I am prepared to accept that the police officers, who denied her presence, may have forgotten that she appeared.  However, there can be no rational motive for any deliberate denial of her presence, so in the end the issue is immaterial.

46. Secondly, although she did not come to court in accordance with her witness summons, it was the unfettered decision of the defendant not to seek an order of the court to compel her or the other potential witness to attend.  I was at pains to explain to the defendant, as I am sure was Mr Laskey no his behalf, that he was entitled to pursue such a course if he wished.  He declined to do so and given what I have said about a minimal impact on the case, he has suffered no significant disadvantage.”

22. We considered de bene esse the evidence sought to be admitted and like the judge were satisfied that its relevance was marginal in all of the circumstances.  It did not cause us to be concerned about the integrity of the applicant’s conviction.  Accordingly we refused the application to admit fresh evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221 and the application for leave to appeal conviction was dismissed.