HKSAR v. MAK SIU LUN

HCMA24/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.24 OF 2005

(ON APPEAL FROM KCCC11020 OF 2004)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction of the offence of trafficking in a dangerous drug, namely 43 tablets containing a total of 5.47 grammes of 3, 4-methylenedioxy methamphetamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 (Charge 1 on the Charge Sheet). 

2. The charge alleged that the appellant committed the offence on 11 March 2004 at 1^st floor, Kam Po Building in Woosung Street, Yaumatei.  

3. The following sequence of events emerged from the evidence of the prosecution. 

4. The police had been keeping these premises under observation from shortly after 9:00 p.m. on 11 March 2004.  At about 10:30 p.m. the appellant appeared outside the premises.  A police officer PC54412 (”PW1”) rushed up and intercepted him.

5. After revealing that he was a police officer, PW1 demanded to see what the appellant was holding in his hands.  The appellant resisted.  With the aid of two other police officers PW1 discovered a bundle of 3 keys from the appellant’s right hand.  The appellant said that he lived in the premises.  Using the keys PW1 opened the metal grille and front door of the premises.  The drugs which are the subject of Charge 1 were found on top of a wooden cabinet placed on a mattress on the floor of the room.  Also found on top of the cabinet were a number of resealable plastic bags and two weighing scales.

6. A few minutes later, a second man, Mak Kin Hong (D2) used keys to enter the flat but, presumably on seeing what was going on in the flat, turned away and fled.  He was apprehended by the police and found in possession of 10 tablets similar to the ones found earlier in the premises.  Later still when the police was still there, a third man, Lau Chi Wai, the tenant of the premises, entered the flat and was arrested.

7. Apart from the allegation that he had initially resisted and had said that he lived in the premises, the appellant did not dispute this outline of events.

8. As the magistrate stated in his Statement of Findings, the real bone of contention in the trial of the appellant centred on what the police alleged the appellant said after he was arrested and cautioned, a post-record of those words (side at Yaumatei Police Station (Exh. P46) and a subsequent record of interview (Exh. P47) recorded by the same officer (PC54412), PW1.

9. The words allegedly uttered by the appellant at the time of his arrest and thereafter included in the post-record signed by the appellant were to the effect that some of the Ecstasy pills in question was for his own consumption and others for sale to others.

10. In the record of interview (Exh. P47), the appellant is recorded as having said that he had bought about 60 Ecstasy pills for $1,000 from a friend known to him as “Ah Keung” in the vicinity of the Empire Theatre at around 1:00 p.m. on 11 March 2004 (i.e. the day he was arrested).  He intended to sell them to others at $70 per pill.  He had later sold seven of the pills to a friend called Ah Wai.  The 43 pills found by the police were most of the pills remaining from the 60 tablets he had bought earlier.  The premises where they were found was rented by a friend for the appellant and another friend to sleep.

11. These alleged admissions were the subject of a voir dire at which PW1 (PC54412), PW2 (DPC34145) (the officer who had arrested D2) and the appellant gave evidence.

12. After hearing evidence from the prosecution and the appellant the learned magistrate ruled this evidence admissible.

13. The appellant elected not to give evidence on the general issues.  Not surprisingly in the light of the prosecution evidence on the general issue which included the matters that had been unsuccessfully challenged in the voir dire, and which the magistrate believed, he found the prosecution case against the appellant proved.

14. It can be seen that the evidence of the admissions allegedly made by the appellant which the magistrate had ruled admissible were crucial to the prosecution case against the appellant.

15. The appellant’s first and principal ground of appeal is that there was a material irregularity in the course of the trial in that the magistrate failed to follow or properly understand the objections to admissibility of the alleged oral admission of the appellant, the post-record of that record and the record of the interview.

16. The objections to admissibility which were stated orally by the appellant’s counsel included an allegation that that the appellant had been assaulted by an at that time unidentified officer but who was later said to be called “Ah Ken” or “Ah Kent” and, following an identification parade, identified as PC34361.  The appellant’s evidence on the voir dire was that after he had been asked what the 43 tablets that from the subject of the charge were and had replied that he did not know, the sergeant who was present had suggested that some were for the appellant’s own consumption and some for sale.  When the appellant had persisted in denying that he knew what the tablets were, Ah Ken (i.e. PC34361) had hit him twice and had later told him that if he did not admit, he would make the matters more serious by charging him with trafficking in dangerous drugs.  Later on when the appellant still refused to admit that he was selling the drugs, the same officer had made gestures indicating he was about to hit the appellant.  The appellant went on to make allegations about the later conduct of PW1 (PC54412) which included threats and inducements.

17. Unfortunately in his Statement of Findings of 28 December 2004, the magistrate confused the identity of PW2 (DPC34145) with the officer PC34361 (Ah Ken) against whom the allegations were made.  This may be because of the similarity of their service numbers and the fact that he was obliged to conduct the trial from time to time over a number of non-consecutive day. 

18. The magistrate incorrectly stated that the appellant’s counsel in giving oral objections to the admissibility of the alleged admissions had referred to an assault by PW2.  In fact counsel for the appellant had made no reference to PW2.  He had referred to an, at that stage unidentified, officer, whom he later informed the court was known as Ah Ken or Ah Kent and had been identified as PC34361.

19. In paragraph 16 of his Statement of Findings, the magistrate summarized the allegations of the appellant on the special issue.  He repeatedly mistakenly referred to the allegations which the appellant had made against PC34361 (Ah Ken) as having been made against PW2 (DPC34145).

20. There can be no doubt that at the time the magistrate wrote his Statement of Findings dated 28 December 2004 following the lodging by the appellant of the notice of appeal he believed that the very serious allegations of assault which the appellant had made against PC34361, who did not give evidence, had been made against PW2 who did give evidence.

21. Miss Vinci Lam, who appears for the respondent, concedes the error on the part of the magistrate when he wrote his Statement of Findings dated 28 December 2004.  With considerable ingenuity but ultimately unsuccessfully she has sought to persuade me that despite his mistake in the Statement of Findings of 28 December 2004, the magistrate could not have been under a similar misapprehension when he delivered his ruling on the special issue on 29 November 2004 and his verdict on 6 December 2004.  I am satisfied that there is nothing in the transcript to indicate that he was not under a similar misapprehension on those two earlier dates.  It is simply impossible to state when the magistrate’s misapprehension arose.

22. She alternatively argues that even if the magistrate was under a misapprehension as to the identity of PC34361, he would inevitably have returned the same verdict as he believed the evidence of PW1 (PC54412) who was allegedly present at the time of the alleged misconduct by PC34361 and who denied it had occurred.  I am unable to accept that that would necessarily have been the case.  In the circumstances of this case, the magistrate’s assessment of the veracity of PW1 (PW54412) would inevitability have depended in part on his assessment of the veracity of the appellant.

23. In paragraphs 36-38 of his Statement of Findings, having said he disbelieved the evidence of the appellant, the magistrate referred to what he saw as implausibilities in the appellant’s account.  He did not however state that he exclusively relied on those matters in determining the credibility of the sergeant.  I cannot exclude the possibility that his assessment of the credibility of the appellant was partially influenced by a belief that the appellant was a man who was prepared to and had made serious and unfounded applications of assault against PW2 who had given evidence in the trial.

24. Miss Lam puts forward a further argument that the defendant’s allegation against PC34361 was only pertinent to the alleged verbal confession by the appellant and that the allegations in relation to the post-recorded cautioned statement and the record of interview were all directed at PW1 (PC54412).

25. This argument foundered for a number of reasons, including the possibility to which I have just referred that the magistrate’s conclusions as to the veracity of PW1 was coloured by his view of the veracity of the appellant whom he may have believed had made unfounded allegations against PW2.  In any event if the magistrate had found that there might be some truth in the allegations of assault by Ah Ken if he had not mistaken the identity of Ah Ken he might well have taken the view that the subsequent post-record and record of interview were taken in circumstances of oppression even if he was satisfied that the allegations against PW1 were untrue.

26. I am satisfied that the mistake by the magistrate as to the person against whom the relevant allegation of assault made was a material irregularity rendering the conviction of the appellant unsafe and unsatisfaction.

27. I allow the appeal.

28. I quash the conviction.

29. The appellant was sentenced to 8 months’ imprisonment.  Unfortunately his application for bail pending appeal was refused as those representing him had not appreciated the error into which the magistrate had fallen.  As a consequence the appellant has now served the sentence imposed on him.  It would in the circumstances be inappropriate to order a retrial.