HKSAR v. CHAN SIU KEUNG

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 348

(Criminal)

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J U D G M E N T

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Liu JA:

1. For some 18 days up to 18 July 1995, Customs officers kept watch over the rooftop house of No. 17A Wan King Street, Tokwawan and its vicinity. The appellant and one Lin Kei-ming (Lin) were observed by the Customs surveillance team entering, leaving and remaining together inside the rooftop house. They were also seen in the vicinity of the rooftop house on various occasions. On 18 July 1995, the appellant and Lin arrived at the rooftop house together at about 6 p.m. They entered the rooftop house and did not emerge from it until some 2½ hours later at about 8.15 p.m. Lin was stopped and apprehended on the street. The appellant was apprehended nearby. A bunch of keys was found on the appellant. When they were both brought back to the rooftop house, five of those keys opened its locks. Inside were found various paraphernalia capable of being used for manufacturing dangerous drugs, all containing traces of heroin, as well as cutting agents and other chemicals for drug manufacturing. The Customs officers also recovered 18 blocks of heroin and other fragments of mixture. The total quantity was 17,256.69 gms of a mixture containing 872.49 gms of heroin hydrochloride. The value of the find was almost $1.7 m. The appellant and Lin were both charged with trafficking and manufacturing. Lin pleaded guilty to trafficking and turned prosecution witness. The counts were amended to charging the appellant alone with trafficking in the recovered quantity of dangerous drugs and with manufacturing between 1 May 1995 to 18 July 1995 at the rooftop house. The appellant faced these amended 1^st and 2^st counts before Deputy Judge Jackson and a jury. The appellant pleaded not guilty to each count. But the jury returned unanimous verdicts of guilty against the appellant on both counts after trial. The appellant now appeals against his convictions.

2. At the scene the appellant attempted to flee. He put up a struggle. After he was subdued, the appellant was searched by the arresting Customs officer who found on him the bunch of 8 keys. The applicant explained that the bunch of keys was given to him by Lin and that he did not know what that bunch of keys was for. Upon observing the inside of the rooftop house after entry, the appellant was arrested and cautioned. The prosecution alleged that the appellant orally admitted that he entered the rooftop house at about 6 p.m. that evening and that he "had only touched some transparent plastic bags in the flat, and had seen Lin Kei-ming manufacturing and packaging dangerous drug inside there". The time of arrest was about 8.20 p.m. Some 30 minutes later, the Customs officer who arrested the appellant made a post-recording of his earlier verbal statement. At a later interview, the appellant gave further statements and those were recorded. At the trial, the post-recording of the oral statement was marked "P 159" and the record of the appellant's interview "P 158". The production of P 159 was objected to but P 158 was admitted without objection until the 9^th prosecution witness, Senior Inspector Kong, had concluded his evidence. Both objections were rejected in turn by the trial judge in his rulings.

3. We allow counsel to argue on his Amended Perfected Grounds of Appeal. On behalf of the appellant, it is sought to lead additional evidence. A medical report of the hospital at Lai Chi Kok Reception Centre was produced in the trial within the trial, which recorded the appellant's complaints of police assaults, including kicking his right loin area but the report concluded with the finding: "No external injury seen". Before the jury, the appellant repeated his allegations against the police. The appellant was cross-examined that when he was seen by a doctor on 20 July, no bruises were found on him. Thereupon the appellant sought to make much of his conditions which prompted him to seek a medical examination at the Lai Chi Kok Reception Centre. He claimed that there was a swelling on his right back and that he could hardly walk. However, he had never seen a copy of his medical report. But the appellant was adamant that he was given a pain-killing pill, and he stressed the point that "it is difficult in Lai Chi Kok for people to issue this kind of pill". The appellant now seeks to introduce, as additional evidence, a further medical report from the same Lai Chi Kok Reception Centre which, albeit returning the same finding i.e. "no external injury mark was seen", referred to analgesic balm in this way: "As he complained of pain over his right loin, local application of analgesic balm was prescribed for him". That was substantially what he related to the jury - a swelling on his right back and a pain-killing pill was prescribed. On the same finding in the new report i.e. no external injury mark, it could, at best, be of marginal importance. Hence the information in the additional medical report sought to be introduced would take the matter little further. In addition, it has not been shown that the medical report was unavailable at the time of the trial or that it could not have been procured with reasonable diligence. We refuse the appellant's application.

4. Counsel for the appellant further applies for the introduction of a Police Prisoner's Property Receipt, item 17 of which reads: "One bunch of key". In the Customs and Excise Department's Detainee's Property Receipt, item 15 is "a bunch of keys". Counsel seems to argue that the extra 3 keys would raise some doubt in the prosecution case. The appellant was caught with the bunch of 8 keys. 5 opened the locks to the rooftop house and 3 were kept in the Detainee's Property Section. Keys were used to gain entry into the appellant's rented premises elsewhere. As we understand it, counsel is suggesting that more keys must have been found at the time of the appellant's arrest and that these keys for the appellant's rented premises were not accounted for. This could only be peripheral. Moreover, the Police Prisoner's Property Receipt was available at the time of the trial and it could have been produced with reasonable diligence. Counsel concedes that the Prisoner's Property Receipt could not be expected to produce by itself a different result. The application is finally abandoned.

5. Ground 1 of the appellant's Amended Perfected Grounds of Appeal complains that the absence of the said further medical report from the Lai Chi Kok Detention Centre had caused the appellant much prejudice. We have dealt with the application for introducing the additional medical report. No more need be said except for recording our decision that Ground 1 fails.

6. We shall return to Grounds 2 and 3 later.

7. Ground 4 - contact evidence.

8. In the appellant's oral statement made to the arresting Customs officer as recorded in P 159, he claimed to have touched some transparent plastic bags in the rooftop house where he had also seen Lin manufacture and package dangerous drugs. He denied noticing some of the paraphernalia in the rooftop house. The defence was that for the first time he was invited by Lin to go over to the place to inspect a water leak. As it was his birthday and he was ready to go out to celebrate, he only stayed in the rooftop house for barely 10 - 15 minutes. He could not explain how the traces of heroin came to be on his right hand. The police had used a cotton ball to wipe the appellant's right hand which provided a positive sample for the Government Chemist. Traces of heroin were found in the cotton swab. The appellant did not himself object to the Customs officer taking a cotton swab. He had not been specifically told how the cotton swab was to be used nor that he had a right to refuse providing the sample required. Without deciding if the Customs officer's cotton swab fell within the category of a quasi-confession, the judge concluded that in the circumstances the sample had not been unfairly obtained. The judge was satisfied that the appellant could not have failed to appreciate the purpose for which the sample was taken. The judge declined to exercise his residual discretion to exclude the cotton swab evidence. The judge was of the view that given appropriate directions the jury could very well decide for themselves if the contact evidence was fair and fairly obtained in all the circumstances. At the end of his ruling, he commented: "Of course, the jury may take a different view. They may be minded to reject the evidence for the reasons advanced by Mr Mullick. Appropriate directions can, in my view, be given to the jury to ensure that such determination, if it exists, must not be diluted by any prejudice arriving out of the evidence itself." In his final submissions to the jury, trial counsel for the appellant focused wholly on the possibility of him coming into contact with traces of dangerous drugs inside the rooftop house. Counsel submitted: "But the point we make about this is Mr Chan does not deny going into the premises that day ....... and it's possible that he would have contact that way ..... This so-called contact evidence. Contact with what? Well, it's contact with some area of surfaces in the premises." The judge had left with the jury a clear message that they "might also draw inferences from ..... the contact evidence if, despite what (he was) later going to say to (them), (they) accepted that evidence". Tailoring his summing up to suit the narrow ambit of the stance taken in counsel's final submission, the judge rehearsed for the benefit of the jury the appellant's allegations of threats, assaults and inducements against the Customs officers, including the arresting officer. He reminded them how a cotton swab was taken from the appellant in the rooftop house after he had been explained what was about to be done to him, and after the arresting Customs officer concerned told him that he wished to receive his co-operation. The appellant did not resist, but the attention of the jury was conspicuously drawn to the concession made by the arresting officer under cross-examination that he had said earlier in the trial that he told the appellant that he must assist. Only the cotton swab of the right hand of the appellant showed traces of heroin. On the demand made of him to be swabbed, the judge asked the jury to approach the contact evidence with care. The jury were also invited to bear in mind the possibility of the appellant having inadvertently come in contact with some heroin after his arrest. The judge reminded the jury of the appellant's claim that he had taken a bath just before visiting Lin. The jury were specifically asked to consider whether the appellant might not have touched some heroin or some contaminated objects innocently during his stay in the rooftop house. Indeed, the judge had properly directed the jury that the contact evidence could very well be consistent with the appellant's evidence. The judge had done all he could to ensure that the appellant would have a fair trial. The appellant cannot have any real complaint in ground 4.

9. Initially Lin would have the police believe that the appellant had nothing to do with the dangerous drugs found in the rooftop house and that in fact he had never been there before. Lin even denied knowing the name of the appellant. After he turned prosecution witness, he admitted those assertions as lies and heavily implicated the appellant as his "boss" running the manufacturing establishment. Lin testified to the appellant's frequent contact with heroin. It is not complained that the judge had not given the jury a proper direction on Lin and his wholly uncorroborated evidence. The judge also warned the jury that they must not take a quantum leap in assuming that the appellant was a party to manufacturing and packaging merely because he had said, according to the evidence of the arresting officer and the post-recording, that he had seen Lin work with dangerous drugs inside the rooftop house. The judge has, in the context of counsel's narrow approach in his final submission, placed before the jury a scenario fair to the appellant. This ground fails.

10. Ground 5 - record of interview, P 158.

11. At the close of the evidence of the 9^th prosecution witness, Senior Inspector Kong, the admissibility of the record of interview, P 158, which was already in evidence, was challenged by trial counsel for the appellant upon the basis that, because of the way in which the interviewing officer questioned the appellant, it had been unfairly obtained. The judge declined to exercise his residual discretion to exclude P 158 with the observation that appropriate directions could be given to the jury so as to avoid prejudice to the appellant. The judge repeated for the benefit of the jury the complaints of the appellant viz. he had not been reminded of the reason for his arrest, the Senior Inspector had not disclosed his decision to charge the appellant, the first page was signed blank, two or three copies had been discarded inferring that the Customs officer in charge was making a few practice runs, the appellant was invited to play a game of questions and answers with the Customs officer, some recorded answers were not made, to some questions no answers were even given, some questions were in fact not asked, the Customs officers resorted to maneuvers calculated to lead the appellant into saying that he had visited the premises more than once. The jury had also been reminded of the appellant's complaints of assaults, mis-treatment and inducements. The jury were asked: "What do you make of all these, members of the jury, because this is a matter entirely for you. If the record of interview is an accurate record of everything that was said, what do you conclude from it?" The jury were given a relatively free hand. The judge had lived up to his assurance by giving these "appropriate directions". Ground 5 also fails.

12. Ground 6 - Surveillance evidence, including the photographs.

13. The judge summarised the evidence of the Customs officers in the surveillance team, viz. 90159, 82347, 8544, Senior Inspector Kong, 9136, 9215, 9165, 8563, 89124, 8437 and the arresting officer 8601. The appellant refused to participate in an identification parade which was sought to be staged some five months after his arrest. The surveillance evidence related principally to the count of manufacturing. Only the arresting officer, 8601 gave evidence identifying the appellant in person. The prosecution was unable to conclusively establish that the two personalities kept under surveillance were the same two men throughout the observations made by the other Customs officers. There was extensive cross-examination on the field of vision, particularly regarding the head or facial features, clarity of sighting, angle of view, time of observation with at least one made at night, obstructions, accuracies of and procedure for keeping surveillance records and the type of binoculars used. The arresting officer identified the appellant, but some other officers identified the appellant from photographs taken of him elsewhere in the vicinity. All this was again brought to the jury's attention. The judge warned the jury to approach the identification evidence "with great care and with great scrutiny." The judge properly left such surveillance evidence to the jury. The jury were properly warned. There is nothing in ground 6.

14. Ground 7 - discrepancies between oral testimonies and witnesses' statements.

15. These discrepancies were brought out in the cross-examination of some of the Customs officers. The judge directed attention to the lack of mention of the use of binoculars in the statements. There was no such unusual feature in the case as would call for a specific direction on these discrepancies other than one largely based on common sense. That is what the judge did. His direction was, in our view, adequate. The appellant cannot succeed on ground 7.

16. Ground 8 - keys.

17. Question 4 in the record of interview and its preamble referred to the finding of two keys on the appellant. The arresting Customs officer gave evidence of the recovery of a bunch of 8 keys from him. Five keys opened the locks to the rooftop house. According to the Exhibit Officer, the other 3 keys were kept by the Customs and Excise Department as detainee's properties for the appellant, and they were never tried on any premises. Evidence was also led that the premises rented by the appellant were gained access to by the use of some 3 keys. Counsel submits that there was at least a doubt as to whether the 3 keys that opened the premises rented by the appellant might have come from someone else or whether more keys were found on the appellant than they prosecution was prepared to admit. Counsel is unable to take it beyond a question of credibility. These discrepancies were squarely placed before the jury in the summing up. There is nothing in ground 8.

18. Ground 9 - lies.

19. The judge directed the jury that if they should find the appellant to have lied, they had to consider why he had so lied. He reminded the jury that lies were not evidence of guilt. He gave examples of a host of non-incriminating circumstances which might lead to an untruth being told and he specifically directed the jury that only if they were sure "that he (the appellant) did not lie for some such or other innocent reasons, then his lies could support the prosecution case". That direction can hardly be faulted. Ground 9 fails.

20. Ground 10 - disbelief of the appellant's evidence or defence would not relieve the prosecution from discharging its burden of proof.

21. This is precisely how the judge instructed the jury that it was for the prosecution to prove guilt and it was not for the appellant to establish any defence. In addressing the evidence given by the appellant, the judge repeated the same warning, as he had said to them previously, that the appellant did not have to prove his innocence - it was for the prosecution to prove his guilt beyond a reasonable doubt and that the jury " should bear that very much in mind when assessing his evidence and that of his witnesses". That was also directed against the prosecution's suggestion that the account given by the appellant to the Customs officer in the record of interview P 158 was a pack of lies.

22. The judge summed up to the jury to the effect that on all the evidence, both for and against the appellant, they should give the appellant the benefit of doubt. We find nothing in ground 10.

23. Grounds 2 and 3 - oral admissions and post-recording, P 159.

24. It is conceded that the admissibility of the oral admission of the appellant should have been ruled upon in a trial within a trial. The prosecution's concession is readily made because of Thakoen Gwitsa Thaporn Thongjai and Li Chuen-kong v. R (Privy Council Appeals No. 20 and 15 of 1997, 23 June 1997). Deputy Judge Jackson was not assisted by the decision of Privy Council in these two appeals, which was delivered after his summing up. The judge was not even invited to rule on the oral admission and his ruling was consequently confined to the signing of the post-record in P 159 made by the arresting officer. It is worth noting the given particulars of objections to the admissibility of P 159:

" The first objection is that the 2^nd defendant, that is Mr CHAN Siu-keung, was induced to sign the said notebook by reason of assaults, threats and promises.

Secondly, several men, including Customs Officer 8603, rushed towards the 2^nd defendant. One put his arm around the 2^nd defendant's neck and another punched him in the arm. My Lord, a matter in context, that particular incident, we say, took place in an alleyway just outside the front entrance to the building where the premises were found on the rooftop.

Thirdly, the 2^nd defendant was taken to a nearby carpark. There he was kicked twice in the small of his back by Customs Officer 8603. By this time the 2^nd defendant was handcuffed. He fell to the ground. Then someone grabbed his hair and the 2^nd defendant was forced on his feet.

Fourthly, Customs Officer 8603 then said, "If you co-operate, we don't beat you up. If you don't, we will beat you up again."

Fifthly, later on while the 2^nd defendant, Customs Officer 8603 and another customs officer were waiting in the carpark, Customs Officer 8603 cuffed the head of the 2^nd defendant.

Sixthly, the 2^nd defendant was taken to the rooftop of a building. After some time, he was approached by a customs officer, who said he was an inspector and the officer in charge of the case. The alleged inspector asked the 2^nd defendant some questions. Further, the inspection told the 2^nd defendant "Do you have anything to say? The guy with glasses had admitted everything. I will not charge you. Do you have anything to add?" the 2^nd defendant made no reply, whereupon the inspector said "Even if you know about the case, I won't charge you. In fact, I will give you money reward."

Seventhly, later the same evening the 2^nd defendant was brought down to the street level. He was placed in a vehicle. Customs Officer 8603 showed the 2^nd defendant a notebook. He said, "This is a record of your arrest. We have searched you. Have you lost anything? Do you have any complaints? If you complain, we will beat you up again." The 2^nd defendant wanted to read the notebook, but Customs Officer 8603 would not allow him to do so. Customs Officer 8603 showed the 2^nd defendant the notebook who saw the characters " I understand". Customs Officer 8603 pointed out the place where the 2^nd defendant should sign. Another customs officer in the vehicle said, "Fat guy, sign there, it wont' do you any harm, just sign."

Eighthly, the record of the alleged arrest, as recorded in Exhibit P.P. 159, is untrue. The 2^nd defendant was not formally arrested until after he was brought to the offices of the Customs and Excise.

Those are the objections to the admissibility of the document."

25. Complaints of improprieties spanned over a period from the appellant's interception to the signing of the post-recording P 159. They included his apprehension, his body search, the finding of the keys, the subsequent use of the keys, the discovery of the drugs and related exhibits, the questioning of the appellant, his assaults, threats and inducements, his lack of opportunity of reading P 159 and the appellant's signing of it immediately after his hair had been released. Trial counsel for the appellant submitted that P 159 was signed on street level but not on the roof and that it was signed about 9.10 p.m. but not after 11 p.m. The judge admitted P 159 as having been voluntarily signed. It was open to the judge so to rule. However, it is conceded that this is a case of what their Lordships in the Judicial Committee described as a deprivation of a "very important safeguard of a ruling by a trial judge as to the admissibility of the alleged oral admission which was an important part of the case against (the appellant)." Mr Bruce for HKSAR contends that admissibility of the oral statement recorded in P 159 had caused no or no appreciable injustice and counsel invites us to consider invoking the proviso to s. 83 (1) of the Criminal Procedure Ordinance. The voir dire conducted by the judge focused on the signing of P 159 and its attendant alleged assaults, threats and promises. But from the 2^nd particulars of objection onwards, the appellant raised acts of impropriety committed after his apprehension up to the completion of P 159. The 2^nd particulars of objection as given by counsel dealt with the interception of the appellant in an alleyway outside the entrance to the building above which the rooftop house sat. The 3^rd particulars of objection described the assaults on the handcuffed appellant in a nearby carpark. The next two following particulars 4 and 5 also related to assaults and threats in the carpark. Particulars 6 took the events to the rooftop where the appellant was allegedly induced to make a further statement on an assurance that he would not be charged because Lin had taken full responsibility. The appellant was allegedly even offered a money award. The 7^th particulars alleged that the appellant was brought down to street level and placed in a vehicle in which the arresting officer showed him a notebook. Thereupon, the appellant was threatened to be further assaulted unless he signed P 159. The last particulars claimed that the record in P 159 was untrue, in particular the appellant had not been formally arrested before he was brought back to the offices of the Customs and Excise Department. These were advanced as objections to the admissibility of P 159 but the main thrust of the complaints was directed at the circumstances of and surrounding the oral statement. The prosecution had a case of considerable strength against the appellant. The appellant himself gave evidence in the voir dire and at the trial. There is no suggestion that the appellant had been prevented from calling any witnesses by the absence of a voir dire. No more complaint could have been raised for the consideration of the judge on the issue of admissibility of the oral statement. It is blatantly clear that had the trial judge considered the issue, he would inevitably have ruled that the oral statement was equally admissible. At the point of time when P 159 was produced, the appellant was mainly threatened with being beaten "up again" if he complained or if he refused to sign as instructed. The appellant also complained that he was not permitted to read the notebook and he complied with the request to sign after his hair had barely been released. From start to finish, the bulk of the alleged assaults, intimidation and inducements related to the oral statement, and on those objections the judge considered P 159. The failure to provide the important safe-guard to the appellant for his oral statement at a time when the Privy Council decision was yet to be pronounced had clearly caused no injustice. The omission to hold a voir dire on the oral statement was an error of law, but in the circumstances we are left in no doubt that no miscarriage of justice has actually occurred. We apply the proviso to s. 83(1) of the Criminal Procedure Ordinance and allow the appellant's convictions on both counts to stand.

26. In all the circumstances, we do not find the convictions of the appellant either unsafe or unsatisfactory. His appeal is, therefore, dismissed.