HKSAR v. KEUNG CHUN KIT

CACC 300/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 300 OF 2009

(ON APPEAL FROM DCCC NO. 377 OF 2009)

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the Reasons for Judgment of the Court):

1.  The applicant was convicted by Deputy Judge Woodcock in the District Court of a single offence of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and sentenced to 3 ½ years imprisonment. He appeals against his conviction only.

The prosecution case

2.  At about 10:30 p.m. on 18 February 2009 a team of police officers conducted an inspection of the Flor Karaoke Nightclub in Yau Ma Tei armed with a gambling authorisation.  Upon entry, the staff of the nightclub were asked to assemble in a particular part of the premises while the customers were instructed to remain in their individual rooms.  When the staff had gathered together PC 58120 (PW1) noticed the applicant, who was a public relations officer at the nightclub, inching towards the exit door carrying a bag across his shoulder and chest.   PW1 was suspicious and informed Sgt. 5237 (PW3) that he wished to search the applicant.  Accordingly, PW1 and PW3 escorted the applicant to a small room inside the nightclub in order to conduct a search.

3.  Inside the applicant’s bag was found a wallet containing $4,500 in cash, a bunch of keys, and six invoices with handwritten figures together with a wad of blank invoices.  PW1 asked the applicant what the writing meant.  The applicant did not answer.  PW1 then searched the right front trouser pocket of the applicant and asked what it was that was protruding from his waist on his right-hand side.  The applicant again did not answer. Accordingly, PW1 asked him to unbuckle his belt whereupon he discovered a transparent plastic bag with 27 smaller plastic bags containing suspected cocaine in the front waist area of the applicant’s underpants.  At that stage the applicant said to PW1 “Ah Sir, I just got them for selling to make some money.”  The officer duly declared arrest on the applicant for the offence of trafficking in a dangerous drug and cautioned him, to which the applicant replied “Ah Sir, give me a chance”.  The officer continued his search and found a wad of banknotes totalling $9100 in the applicant’s back trouser pocket.  The money was returned to the applicant.  PW1 and PW3 then took the applicant to the locker area where the applicant used one of the keys from the bunch found in his bag to open his locker.  Nothing suspicious was found.

4.  The applicant was subsequently escorted to Tsim Sha Tsui Police Station.  When PW1 made a post record of what had taken place at the nightclub the applicant refused to sign on the document.  The applicant was later seen by two lawyers after which a complaint was lodged with the duty officer against the conduct of the police.

The defence case

5.  The applicant’s case was that when he had assembled with the other staff, PW1 approached him and asked him to open his bag for a search.   Whilst he was explaining the contents to PW1, he was asked by PW3 to go into a room.  The applicant continued his explanation of the contents of his bag and produced a pawn shop receipt to explain $10,000 of the cash in his possession.  He further explained the figures written on the invoices.  At that point WAN Mei-chak (DW2), the person in charge of the nightclub, was summoned into the room to confirm the applicant’s explanation.  DW2 later gave evidence on the applicant’s behalf. 

6.  The applicant was then taken to open his personal locker where nothing suspicious was found.  It was the applicant’s case that, as well as the bunch of keys containing his own locker key, there was another bunch of keys for a number of empty lockers found in his bag. Another police officer told the applicant that dangerous drugs had been found in an empty locker (no. 92), which had been accessed by one of the keys in the bunch, and that therefore the drugs must be his.  The applicant explained that the key could have opened many lockers and that other members of staff with keys could also have opened locker no. 92.  Finally, various allegations of assault, in the locker area and later in Tsim Sha Tsui police station where the applicant refused to sign the post record detailing his admissions, were made to the Duty Officer.  The applicant declined to be further interviewed. 

7.  In essence, the defence was that the drugs had not been found on the applicant’s person as alleged by the police and that he had been wrongly accused of possessing drugs found in an empty locker at the nightclub which he had nothing to do with.

The ultimate issue

8.  The ultimate question for the trial judge, therefore, was whether she could be sure that the police witnesses were telling the truth when they said that the drugs were found in the applicant’s waistband.  For if she could be sure of that, certain obvious inferences flowed.  If the applicant and his witness’s evidence cast doubt on that matter, or if for any other reason she entertained a reasonable doubt about it, then she could not be sure the applicant was in possession of drugs and he would be not guilty of the charge of trafficking.

9.  The question was therefore a straightforward one of fact and credibility.  It is in her approach to and assessment of that issue that complaint is made in this appeal.  Mr Y C Yeung, on behalf of the applicant, contends that on a number of issues the trial judge failed to consider the inherent improbabilities of what the police officers were saying and, by contrast, the inherent probability of the applicant’s version of events. 

The grounds of appeal and discussion

10.  Taking the complaints about the evidence in sequence, it is said that the trial judge failed to note the discrepancy between PW1 and PW3’s evidence as to the unzipping of the applicant’s jeans and failed to appreciate the improbability of PW1’s evidence as to how he found the drugs (Ground 3).  Initially, in evidence in chief, PW1 had said that after the applicant unbuckled his belt, he (the officer) undid the top button of the applicant’s jeans and unzipped his fly before pulling the waistband of his underpants away from the applicant’s body.  However, the witness later in cross-examination asked to correct his evidence to say that the applicant’s fly consisted of buttons and not a zip.  It is noteworthy that this correction was made before it was put to him that there was in fact no zip.  It is true that the learned Deputy Judge thought that PW1 had said he unbuttoned the top button and fly of the applicant’s jeans when he had not expressly said that he had unbuttoned the fly, but we think it an understandable mistake to have made in the light of PW1’s initial mistaken assertion that he had unzipped the fly. It is also correct to say that PW3 did not see PW1 unbutton the applicant’s top button or fly.  However, that would have made his evidence consistent with PW1’s corrected version save for the unbuttoning of the top button of his jeans.  We do not think it a matter of any moment even if there were a discrepancy, nor do we accept that it was improbable for PW1 to have discovered the drugs in the way he said he did.  There is nothing in this point. 

11.  Next it is argued that it was highly improbable for the police, firstly, to have made no enquiry of the applicant about the large amount of money and the invoices with handwritten markings found in the applicant’s possession and, secondly, not to have noted the applicant’s locker number after finding dangerous drugs on him and hearing his alleged admission of trafficking (Ground 4).  In respect of the first matter, we do not think this point can be fairly or properly advanced on the evidence.  PW1 was asked by Mr Yeung in cross-examination why he did not question the applicant about the money.  The witness answered:

“Because at that time I had already enough evidence to arrest him. For all the things that I can get clarification from the defendant, I intended to deal with that matter in the course of a record of interview.”

12.  PW3 was also asked in cross-examination whether he suspected the invoices had anything to do with drugs and, if so, whether he had made any enquiries about the matter.  The witness explained:

“Actually, at first, inside Room 10, (PW1) did ask the defendant about those invoices. However, the defendant did not reply. From my experience, I do believe that those invoices were connected with dangerous drugs. Actually, after returning to the police station, I did instruct (PW1) to ask the defendant about this matter when he was making a post record. So as far as I can remember, while at the scene we did not pursue questions about the invoices. Eventually, the defendant refused to answer those questions and in the end we got no results about this.”

13.  Accordingly, it seems clear that the officers had wanted to ask the applicant about both the money and the invoices. However, as we know, the applicant declined to sign the post record or to answer any further questions about this matter; as was his right.  We do not think complaint can properly be made about the police failing to ask relevant or appropriate questions of the applicant when the evidence is that they intended to but were frustrated in their enquiries by the legitimate exercise of the applicant’s rights. 

14.  So far as the second matter is concerned, we fail to see any relevance at all in the officers’ failure to note down the number of a locker belonging to the applicant where nothing was found and when it played no part whatsoever in the case against the applicant or, for that matter, in the case for the applicant. 

15.  Complaint is also made that PW1 never explained why, having made a record in his notebook inside the room in which enquiries were made of the applicant in the nightclub, he never asked the applicant to sign the notebook there (Ground 2).  This is said to render the evidence of the police witnesses highly improbable.  With respect, when PWl said in cross-examination that he had not done so, Mr Yeung commented:

“Your Honour, I believe I can't go any further if he said he didn’t do that.”

16.  He then closed his cross-examination.  We do not see why defence counsel could not have followed up the answer with the simple question “Why not”?  For all we know there may have been a perfectly sensible explanation.  In any event the learned Deputy Judge dealt specifically with this argument in her Reasons for Verdict and considered there was nothing in the point.  We agree with her. 

17.  Against what is said to be the improbability of the prosecution version of events, it is argued by contrast that the applicant's case was inherently more probable (Ground 1).  In this regard, criticism is made of what is said to be the trial judge's reliance on the applicant’s silences when questioned by the police which she found provided a “convincing sense of reality”.  If the trial judge were using the applicant's silence to support the credibility of the police witnesses, then, so the argument goes, she was effectively using the evidence in a way she was not entitled to use it against the applicant in circumstances where credibility was the only real issue in the case.  However, with respect, the learned trial judge was not using the applicant's silences as probative or indicative of guilt.  We agree with Ms Chan that all the Deputy Judge was saying was that the applicant's silences prior to arrest and caution when asked to explain why he was choosing to use a toilet outside rather than inside the premises, why he was carrying a bag across his chest rather than keeping it in his locker, what the figures on the invoices in his bag represented, and what the bulge in his waist area was, had the ring of truth in explaining the progression of the officers' suspicions and why they dealt with him as they did, whereas the applicant’s account of these events did not.  In so saying, she plainly was addressing the inherent probabilities and improbabilities of the respective stories.  Nor do we think that the limited use made by the Deputy Judge of the applicant's silences prior to his arrest and caution ran counter to the principles set out in HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600 which are designed to apply to rather different circumstances.

Conclusion

18.  We do not agree that the prosecution account in this case was inherently improbable at all.  Ultimately, it was a matter for the trial judge to determine where the truth of the matter lay and whether she was sure of the applicant's guilt.  She was fully addressed on all the issues which have been canvassed today, as well as others, and concluded that the police witnesses were to be believed and the applicant's evidence and that of his witness were not.  We do not think her reasoning can be impugned in any way. 

19.  Leave to appeal against conviction is refused.