HKSAR v. TAM YI CHUN

CAC C 524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 2011

(ON APPEAL FROM HCCC NO. 126 OF 2010)

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.  On 27 September 2011 the applicant was found guilty after trial before Line J and a jury of trafficking in a dangerous drug, namely 1,986 g of a crystalline solid containing 1,916.80 g of methamphetamine hydrochloride and sentenced to 25 years’ imprisonment.  She seeks leave to appeal both conviction and sentence.

2.  On 24 September 2013 we dismissed her application in relation to conviction and said we would give reasons later.  These are our reasons.  For reasons provided at the end of this judgment, we adjourned hearing of the application in relation to sentence.

Background

3.  The date and place of the offence alleged was 17 December 2009 at the Departure Hall of the Hong Kong International Airport.  The applicant was stopped when she was about to take a flight to Japan, and the drugs were found in her suitcase.  They were disguised in tea sachets in two boxes labelled “tea”.  The drugs had a street value of $1.4 million.

4.  Her defence was that she thought she was carrying tea and did not know that the boxes contained dangerous drugs.  She had collected the boxes from someone in Shenzhen, a man whom she had known for some time, named Ah Lung.  She had visited the Mainland on the morning of 17 December when she collected the tea from him and was also given a cell telephone to take with her to Japan, a place to which she had frequently travelled and where Ah Lung said he had a friend to whom the tea was to be delivered.

The complaints

5.  There was in the Perfected Grounds only one ground of appeal.  It reads as follows:

“Despite instructions to the effect that the admissions were not made in the manner asserted by the police, the learned defence counsel at trial had failed to deal with the applicant’s oral and notebook admissions in a voire dire, in an attempt to exclude the prejudicial evidence from the jury. The said failure to seek a voire dire to exclude the prejudicial admissions, in the absence of the jury, had jeopardised the applicant’s chances of both an acquittal and/or a fair trial.”

6.  So this ground is an attack upon the conduct of the case by trial counsel who – naturally in the circumstances – did not appear for the applicant upon the application.  The attack formulated in the written submissions did not bring itself to use the phrase “flagrant incompetence” and Mr Reading SC for the applicant, when pressed by the Court to say whether or not that was the assertion, eventually said that it was.

7.  Other complaints, not contained in the Perfected Grounds of Appeal, emerged obliquely:

(1)     There is thrown into the written submissions, signed by both leading and junior counsel, a complaint that the applicant was not advised of the overwhelming nature of the case against her, which advice “may have resulted in the applicant pleading guilty”.  At the hearing before us this (eventually) became the centre of Mr Reading’s submissions and we heard evidence from the applicant upon it.

(2)     When, at the outset of the hearing before us, we pressed for particulars of the basis upon which it was said that the incriminatory remarks made by the applicant after her arrest were made as a result of threats, oppression or other inducement, the sole particular provided was suggested oppression constituted by the fact of being confronted upon her arrest by four police officers asking her questions; a factual basis, it was said, which warranted a challenge to admissibility but which was not pursued by counsel acting for the applicant at trial.

The inculpatory remarks

8.  All the issues put before us by way of complaint arise out of the prosecution evidence as to what the applicant said upon her arrest, and her endorsement in two out of three subsequent interviews of the accuracy of the initial record of what she had said.

9.  The prosecution evidence was that she was approached at about 1:30 pm on 17 December in the departure area of the Airport and asked to go to a police post where she was searched and the drugs found.  The evidence was that she was arrested and cautioned and that immediately after caution she said: “Those drugs were what Ah Lung asked me to go to the Mainland to collect and then deliver to Japan.  Ah Lung gave me a telephone when arriving in Japan.  On arrival, I would use that phone to call a number stored in the phone to get someone to collect the goods.  I don’t know anything else at all.”

10.  The evidence was that these words were then recorded in a notebook, read to her and she signed them as correct.  She also signed a declaration to the effect that the statement was true and made of her own free will.

11.  In the first of the interviews conducted later that day at the Airport police station, the very words that she had allegedly said after caution were put to her and she was asked whether that record was correct.  She replied: “Yes.” There was no correction by her later in the interview and no suggestion then that she had meant something other than what the words implied.

12.  There was a second interview about three hours later, when it was again put to her what she had allegedly said after caution and she again confirmed that that is what she had said.  In this second interview, however, she asserted that it was tea leaves that Ah Lung had asked her to carry to Japan and that is what she had thought she was carrying.

13.  There was a third interview, on the same day, but nothing inculpatory in it.

14.  In cross-examination of the officer who testified about the notebook entry and the subsequent interviews, it was put to him that before the applicant used the words “Those drugs were what Ah Lung asked me to go to the Mainland to collect and then to deliver to Japan,” he, the police officer, had himself referred to the contents as drugs but he denied that he had done so.  Presumably, the applicant’s counsel was, by his suggestion to the officer, seeking to establish the basis of the applicant’s case that in saying what she said, she was not volunteering knowledge that the boxes contained drugs but merely saying that the boxes which transpired to contain drugs were boxes she had been asked to collect and deliver to Japan.

15.  The applicant’s own evidence in examination-in-chief was that she was shocked by the discovery that there was no tea inside the package and that her mind went blank:

“After I was arrested I remember that I uttered certain things in a confusing way. I remember that I really uttered those words in a confusing way which I, myself, couldn’t understand what I was talking. Then [the arresting officer] tried to figure out the meaning of the words uttered by me. And the officer tried to repeat the words in a logical [way] which was previously uttered by me in a confusing way. After I heard what he said I agreed with the rough meaning provided by him. Therefore I agreed with what he said.”[1]

16.  She went on to assert that the phrase “dangerous drugs” had been used by the officers many times and that she merely followed the phrase used by them. Yet it is crystal clear from her evidence that she accepted that she had used the words, or words to the effect, recorded – so much so that there was the following exchange in the course of her examination-in-chief:

“Q: And what was your understanding – what was your meaning by agreeing ‘Those drugs are what Ah Lung asked me to collect from the Mainland?’

A: What I meant was those two boxes of tea were requested by Ah Lung that I should go to take them from China to Japan.”[2]

17.  But then she said that what had been written down was not an accurate record of what she had said:

“ … all of a sudden a large group of police officers approached me, arrested me and took statements from me and because all this happened in a short period of time, I could not sort out my whole thinking. When he tried to sort out the meaning conveyed by me, when I heard what he said, roughly speaking I find it okay. When the post record was made I found that the sentence written by the officer was the same as the one appear prior to the post record. Therefore, I agree with it and I affixed my own signature. … I was very confused and I didn't know what to do even 10 minutes afterwards … .

…

Court: So I just want to make sure I follow you exactly. You say you are still upset and because you agreed before, you still agreed this time. Any other reason for agreeing to the post record or have I got the whole of the reason?

A: No other reasons.”[3]

18.  As for her subsequent agreement in the course of the first and second interviews with the accuracy of what had been recorded, she said that at the time of those agreements or endorsements her mind was still quite blank and she was still very confused.

19.  She was given ample opportunity to assert impropriety on the part of police officers, if that was her case, but she did not do so.  For example, again in examination-in-chief:

“Q: [At the time of the third interview were] you also happy to continue on answering questions?

A: Yes, I was happy to do so.

Q: Now, one question I have for you is, I mean obviously you were arrested, you were in custody, how did you feel, what did you feel the police were trying to do in their questioning of you, what was your feeling about what they were trying to achieve?

A: I did not think of what they would do with me, in fact I had no idea what they would do with me because I have never been arrested by anyone before, in fact I have no idea at all what they would do with me or for what they were doing.

…

Q: Now in the course of the video interviews, you, towards the, I would say more the second and third interviews, there are a few times that you appeared to be more relaxed and you were smiling a bit more. How were you feeling at that time and why had you become more relaxed, why were you smiling?

…

A: I smiled during the interviews because I thought that some of the questions raised by them were superfluous and some of them were repeated and repeated even if I gave my answers already but at that time I was still happy to give my answers again even if I have given my answers already and even if they sounded to be useless. That’s the reason why I smiled.”[4]

20.  The judge summarised what she said in this particular regard in cross-examination as follows:

“The cross-examination commenced with questions designed to establish exactly the scope of the dispute about that first entry in the notebook. The defendant said she could not remember the actual words used and that she was confused. She did not dispute that she had used the words ‘Those drugs were what Ah Lung asked me to go to the Mainland to collect and then to deliver to Japan’. She did dispute that she would have expressed herself as collecting goods and also the way in which the Japanese telephone had been given to her. However, she did not dispute that the officer had captured the thrust of what she had then wanted to say. Her real case emerged as being an explanation for the words rather than a denial of them.”

Analysis

21.  Against that background, it may seem surprising that it is suggested that admissibility was ever in issue or that there was ever a viable basis upon which to ask the trial judge to exclude her post-caution reply in the exercise of his discretion to exclude evidence the prejudicial value of which exceeded its probative value.

22.  The genesis of the complaint against those acting for the applicant at the time of trial may be found in an affirmation which she made in December 2012, at a stage when she had been refused legal aid for the purposes of the application and when she was acting in person.  In that affirmation, she complained that she had told her solicitor that “what was recorded in the police notebook was never my intention to utter and that I have been misled by the police.”; though in what way she had been misled by the police is not made at all clear.  Later in the same affirmation she asserts that the notebook entry “was not made in the manner described by the police witnesses.”[5]

23.  These and other assertions against her former legal representatives resulted in lengthy affirmations from them disputing in detail with her contention of a failure to give effect to the account given to them in the course of their many interviews with her.

24.  The matter was put as follows in the written submissions presented to us and adopted by leading counsel for the applicant:

“Clearly what the applicant [was attempting to say in her evidence in-chief was] that she said a number of things to the police officer and that officer rearranged this into something completely inculpatory. The applicant’s counsel himself established in examination in-chief [in front of the jury] that the utterances were not accurately recorded. Had this evidence been elicited in a voire dire then it may have called for an application to the trial judge [to] exclude the evidence in the exercise of his discretion.

What the applicant has said she really meant can be found at a cross-examination … :

‘But I don’t mean that I knew dangerous drugs were inside.’”

25.  In those written submissions it is contended that both a challenge to admissibility was called for as well as an application for exclusion in the exercise of the judge’s discretion.

26.  The challenge to admissibility, as thus advanced, rested on the basis that a trick by the police renders a statement involuntary and that the rearrangement of words spoken by defendants was a trick.  It is said that defence counsel at trial “should have applied for a voire dire” not just in respect of the notebook but in respect of the video-recorded interviews as well.

27.  We were dismayed that this grounds of appeal was advanced.  The fact that a putative applicant faces a very long term of imprisonment does not justify the making by counsel of patently unarguable grounds.

28.  It is trite – so much so as not to warrant citation of authority – that a dispute as to whether words were said or whether a record is accurate is not a question of voluntariness.  It is a question of fact to be determined by the jury.  In this case the furthest that the applicant’s case went was that the police summarised what she said and that the summary did not accurately reflect what she meant.  That was an issue for the jury; and the judge left that as an issue for the jury.

29.  Far from asserting any impropriety on the part of the police, the applicant in her testimony identified and asserted none and went so far as to find their conduct a source of bemusement.

30.  As for “tricking” the applicant, an erroneous summary is not the type of trick to which the cases allude as going to voluntariness.  There is no suggestion, for example, that she was misled into what it was she was signing, in relation to the notebook entry, or adopting as accurate in her interviews.

31.  Pressed by us to particularise the other improper behaviour relied upon, Mr Reading suggested that the notebook entry as well as the adoption of its accuracy in the first and second interviews was involuntary because when arrested the applicant was confronted by four officers asking her questions and, he said, “that may have amounted to oppression”.  It was, he said a point which should have been investigated by trial counsel.  He drew this supposed ground from an attendance note made by the solicitor acting for the applicant at trial – a single reference in a host of attendance notes which refers to 5 to 6 people waiting or approaching her and saying something allegedly impolite, namely: “Miss, I am 15/F Hong Kong!” 

32.  There was no suggestion in the applicant’s testimony that she was intimidated other than by the circumstances of arrest for a serious offence.  More particularly, in her final proof of evidence which she had the opportunity to amend or expand – indeed, we see in it a manuscript addition by her in relation to the very event of her arrest – there is not a hint by her of rudeness by the police or of improper behaviour by them.  To the contrary we see an acknowledgement that before she made the inculpatory remark, she was cautioned. It is a detailed account of what happened upon her arrest and it differs from the police account in that it asserts that the word “drugs” was used first by them and not by her and, secondly, that the sentence recorded by the police was but a summary of a series of utterances by her.

33.  Then counsel suggested that there was improper behaviour before the third interview.  The problem with that suggestion, as counsel was constrained swiftly to concede, was that the effect of the third interview was exculpatory and the suggested improper behavior could have had no bearing upon the voluntariness of the words spoken upon original arrest or in the course of the first and second interviews.

34.  So, counsel moved his attack to an entirely new basis.  This was to suggest that the entire trial had been mishandled by trial counsel, an extraordinary allegation to make for the first time two years after conviction and not previously pleaded or otherwise hinted at.  The point was not seriously pursued.

35.  We had by this stage of submissions made clear that there had been demonstrated no viable basis whatsoever upon which trial counsel could sensibly have asked the judge to exclude evidence as being inadmissible or to exclude it in the exercise of his discretion.

The applicant’s evidence

36.  Counsel sought and was granted a relatively short adjournment to consider the matter and then informed us that he wished to pursue the point that trial counsel had not brought home to the applicant that the words spoken were inculpatory or that the case against her was very strong, and that had he done so the applicant “might have pleaded guilty”.  We denied an adjournment to enable him to formulate this ground because the complaint was clear enough and because trial counsel as well as trial solicitor were in court ready to give evidence if necessary.  We afforded Mr Reading the opportunity to call his client if he wished, an invitation which he accepted and we heard the applicant testify on this point.

37.  Her testimony, to the effect that she did not think that the words recorded upon her arrest constituted important evidence against her and that she only realised their importance when the matter was pressed in cross-examination of her at trial, was not believable; not merely because she is a well-educated and relatively sophisticated person, but because on her own evidence, as contained in her affirmation, she had taken pains before the trial to explain to her solicitor that “what was recorded in the police notebook was never my intention to utter”; an explanation which was unnecessary unless she understood its significance.  In any event, she also conceded in that affirmation that her lawyers had advised her that the statement was “incriminating”; though she goes on to assert that they did not advise that it was a conclusive admission of guilt.[6]

Conclusion

38.  This is a case in which there was not a scintilla of merit in the criticism of trial counsel or of the solicitor who acted for the applicant for the trial.  To the contrary, had trial counsel adopted the course suggested by the grounds of appeal, he would have received short shrift; it would have been a foolhardy and counter-productive course to adopt.

39.  For these reasons, the application for leave to appeal conviction was dismissed.  We ordered the respondent’s costs of the application to be paid by the appellant. 

40.  We can fully understand that an applicant facing a long term of imprisonment, and that her family members, would wish to pursue whatever appellate avenue might be open; yet that is not a fact which justifies counsel in advancing entirely hopeless grounds.  We were presented with something in the order of 500 pages to read and the fact that our initial instinct was that the grounds were unmeritorious did not relieve the court from its duty to read the material conscientiously in order to ascertain whether its initial reaction was merited or not.  Each judge spent something in the region of four hours reading such material as is relevant to conviction, and sat for several hours entertaining oral submissions; only to discover at the end of it all that the grounds and the complaints were bone dry of merit.  Thereafter, judicial time was taken up in preparing a draft judgment, the time of counsel for the respondent has been entirely wasted in reading the papers and preparing a fulsome reply.  And, further, substantial time of trial counsel and trial solicitor has been utilised in digging for their records and in preparing affirmations and in attendance at this hearing.  Beyond that and, perhaps most importantly, judicial time taken in preparing for and attending to an entirely unmeritorious application impacts adversely upon those persons in custody who are awaiting a hearing of arguable applications.  This is the ramification of unmeritorious appeals, a ramification which is inimical to the efficient and fair administration of justice.

41.  Accordingly, we will receive submissions from counsel as to whether the narrowly drawn legislation concerning wasted costs empowers us to make a wasted costs order and, if so, why such an order should not be made.

Sentence

42.  Although we have adjourned the application in relation to sentence, it is appropriate to state why we have done so.

43.  The judge adopted a starting point of 23 years’ imprisonment which he articulated as being at the bottom end of the appropriate bracket applying the guidelines in HKSAR v Abdallah [2009] 2 HLRD 437 for trafficking in very large quantities of heroin; and enhanced that by two years to reflect the aggravating factor that this was trafficking with an international dimension.  This resulted in the sentence of 25 years’ imprisonment.

44.  The dangerous drug which this applicant was exporting was methamphetamine hydrochloride, not heroin, but the judge said that “no one sensibly advances a proposition that heroin is worse than “Ice” as a dangerous drug.”

45.  That approach has attracted the disapproval of this Court, differently constituted, in HKSAR v Chan Po-wah and another, Criminal Appeal No. 179 of 2012, unreported, 26 March 2013.

46.  The fact is that no guidelines have been set for trafficking in very large quantities (over 600 grammes) of methamphetamine hydrochloride and, in any event, we have noticed from the cases placed before us that there has been some inconsistency in sentencing for large quantities, particularly in recent times.

47.  We have taken the view, therefore, that the question should be examined whether there is justification, for sentencing purposes, in treating trafficking in very large quantities of methamphetamine hydrochloride differently from very large quantities of heroin and, if there is, whether this Court should provide guidelines in respect of such quantities and, if so, what those guidelines should be.  That apart, the inconsistency to which we have referred is not, as a matter of principle, desirable and needs to be examined so that an approach may be settled with the benefit of appropriate representations.

48.  Accordingly, counsel have been directed to provide the court within 14 days with suggestions for appropriate directions in the light of which we will issue directions concerning the matters upon which the court will wish to be addressed.

[1] Transcript p. 309.

[2] ibid pp. 311-312.

[3] ibid p. 313.

[4] ibid pp. 319 to 320.

[5] Affirmation paras 25 and 32.

[6] Affirmation paragraphs 25 and 50.