HKSAR v. TONG CHEUNG SANG

CACC378/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 378 OF 2008

(ON APPEAL FROM HCCC 183 OF 2008)

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JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. The applicant was convicted after a trial before Deputy Judge Line (as he then was) and a jury of two counts of trafficking in dangerous drugs.  He now seeks leave to appeal those convictions.  The applicant had been jointly indicted with his girlfriend (D2) who, after initially applying for leave to appeal her convictions and sentences in respect of the two counts of trafficking of which she was convicted, abandoned those applications and they have now been dismissed. 

2. The prosecution case was that on 9 April 2008 the applicant had been intercepted by police shortly after he left the flat in Kowloon City which he cohabited with D2.  Some packets of “ice”, amounting to 3.19 grammes, were found on his person which became the subject of the 1^st charge at trial, and when the police returned to his premises with him, a further 23.96 grammes of the drug were found which became the subject of the 2^nd charge. 

3. The applicant’s case was that no drugs were found on his person; that the police fabricated that evidence, and that all the drugs were found in the flat and were for his own consumption.  He said that the admissions as to trafficking contained in a post-record of what he was alleged to have said upon his arrest, and in a later written record of interview, were not made by him but were fabricated by the police and that he had signed those documents as a result of the police promising him that, if he did so, they would ensure that D2 was not prosecuted. 

4. The self-made grounds of appeal advanced by the applicant, who was unrepresented before us, make a number of separate complaints concerning aspects of the evidence which he says render the convictions unsafe.  

(1)     Drug withdrawal symptoms

5. There had been a voire dire to determine the admissibility of the post-recorded statement and, as the applicant had according to the police refused a video recorded interview, also the later written record of the interview of the applicant.  

6. It was common ground that the interview had finished at 1.25 a.m. on the day following the applicant’s arrest and that several hours later the applicant had been taken to Queen Elizabeth Hospital for some form of medical treatment.  The movement record maintained by the police in respect of the applicant recorded that the treatment related to a complaint of chest pain.  Before us the applicant asserts that he went for treatment because he required methadone as a result of his drug addiction, and was therefore in no state to have been interviewed.

7. Quite plainly that was a matter of fact best resolved by the judge at trial.  We might add that even if the applicant had been taken to hospital for methadone treatment, that event occurred some five hours after his interview had been completed and it is difficult to see how, in the context of this case, the circumstances leading up to the giving of any such treatment would render unsafe the decision of the judge to admit into evidence the post-record and the record of interview.  We note also that the basis of the applicant objecting to the admission of these documents at trial was not the state of his health, but that he had been induced to sign them as a result of a promise by the police that doing so would benefit his girlfriend.  

(2)     Handcuffs

8. The applicant points to the evidence given by the police witnesses during the voire dire to the effect that he had been handcuffed from the time of his arrest until being taken to Kowloon City police station where he was asked to sign both the post-record and the record of his interview.  He suggests their evidence could not have been true in regard to his being handcuffed at the time he was said to have signed those documents as the signatures upon them were his normal signature, and accordingly this undermined the overall credibility of those police witnesses.  

9. There is no merit in this complaint whatsoever.  The matter was pre-eminently a matter of fact and for the judge to consider as an issue within the voire dire.  Even if it was not dealt with by the applicant’s counsel during the voire dire, that was a decision for counsel at the time and is not a matter which the applicant can now raise in this court.  In any event we do not see how the issue as to whether the applicant was handcuffed or not at the time of his signing the post-record and the record of interview could have thrown any meaningful light on the matters which were the subject of the voire dire, for the simple reason that it was common ground that the applicant had in fact signed both documents and had not written anything else.  

(3)     The applicant’s document of identity

10. This complaint also related primarily to the admissibility and weight of the applicant’s admissions though it concerned also the general issue of the credibility of the police witnesses.  The applicant suggests that there was a discrepancy in the evidence of the police as to them ascertaining his identity from his identity card, when he had lost that document some days prior to his arrest.  The applicant’s complaint centres on the arresting officers notebook where an entry is recorded that “with your consent we went into the premises to conduct a search and let you get back your identity card to confirm your identity.”  The applicant’s case was that he had reported his identity card missing some nine days before his arrest, so that this entry in referring to his identity card must have been a fabrication.  

11. The arresting officer, it is true, had initially said that on going back to the applicant’s flat he had seen the identity card, but had then corrected himself and said that he had not seen the card.  When the officer who had accompanied the arresting officer was questioned about this matter his evidence was to the effect that the applicant had not said that his identity card was in the flat but that his document of identity was in the flat.  That officer’s witness statement confirmed the reference to a document of identity rather than to an identity card, and indeed the applicant’s passport was found in the flat and it was from that document that the applicant’s identity was established.  

12. All this evidence was fairly summarised by the judge in his summing-up.  Whether or not this aspect of the evidence undermined the credibility of the police evidence was quintessentially a matter for the judge so far as the voire dire was concerned and, later, for the jury.  

13. The applicant, as a subsidiary argument in this regard, also relied upon the fact that his passport was placed in his prisoners property and therefore must have been on his person and not in the flat when he was arrested.  That does not necessarily follow in our view, and in any event it is difficult to see what reason the police would have had to fabricate this aspect of the evidence which had no apparent relevance to the matters they were investigating. 

(4)     The purchase of the drugs in the mainland

14. During his interview on 9 April 2008, the applicant is recorded as saying that he purchased the charged drugs in the mainland “a few days ago”.  His movement record established that he had last been to the mainland on 17 March, and indeed that was not challenged during the trial.  That was nearly three weeks prior to his arrest.  The applicant relies on this discrepancy as supporting his contention that the admissions he was alleged to have made were fabricated and also as undermining the credibility of the police witnesses generally.  

15. This evidence was clearly before the judge during the voire dire and was no doubt considered by him, and again is not of a nature to undermine the integrity of his ruling that the applicant’s admissions were admissible in evidence.  The evidence was also before the jury and in no way could have rendered their verdict unsafe.  Again what weight to place on this evidence was plainly a matter of fact and not a matter for this court. 

16. The specific complaints made by the applicant as to his convictions related to aspects of the evidence which were wholly within the province of the jury or, so far as they concerned the admissibility of the post record and recorded interview, were matters for the judge.  There is nothing of such substance in the aspects of the evidence relied upon by the applicant so as to either individually or cumulatively suggest that his admissions were wrongly allowed into evidence or that his convictions were in any way unsafe. 

17. The application is dismissed.