HKSAR v. LUI WING CHEUNG

HCMA 623/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 623 OF 2008

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J U D G M E N T

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1.  The appellant, an Assistant Officer of the Correctional Services Department stationed at Tung Tau Correctional Institution, was convicted after trial by Mrs Adriana Tse of one charge of introducing unauthorized articles into prison (Charge 1), one charge of possession of prohibited articles by a prison officer (Charge 3), contrary to ss. 18 and 18A respectively of the Prisons Ordinance, Cap. 234 and one charge of possession of Part 1 Poison (Charge 4) contrary to ss. 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap. 138. He was sentenced, on 27 June 2008, to serve a period of 6 months imprisonment on each charge: the sentences were ordered to be served concurrently.

2.  He appeals the convictions and sentences.

3.  11 witnesses testified for the prosecution; there were admitted facts; transcripts of three interviews conducted with the appellant were admitted without objection. The appellant elected not to testify at trial. He relied upon the content of the various interviews and called one witness, one Leung Kuen-kun, a colleague of equal rank: for the cogent reasons which the magistrate set out in her Reasons for Verdict and Sentence, that portion relating to Verdict running to 157 pages, she disbelieved his testimony.

4.  When the appellant filed a Notice of Appeal, two grounds of appeal against conviction were asserted: the first ground said the verdict was “unbalanced” in that the magistrate had not considered the defence of mistaken belief, it being contended that this ground applied to Charges 1 and 3; the second ground, which was said to apply to Charges 3 and 4 asserted that the verdict was unsafe as the magistrate had failed to consider whether the appellant had exclusive control over the tablets.

5.  This latter aspect, that of control, occupied considerable time at trial, effectively forming the cornerstone of the defence to Charges 3 and 4.  It is difficult to understand why this line of defence emerged at all given, first, that the appellant had unequivocally admitted, when questioned immediately after his arrest, that he had introduced into the Correctional Institution all of the items which had been seized; and, second, that he asserted that the tablets which formed the subject matter of those Charges had been prescribed to him at Tung Tau hospital on occasions when he had been feeling unwell.

6.  In respect of the appeal against sentence it was simply asserted that the sentence was manifestly excessive because the magistrate had failed to properly consider mitigating circumstances, particularly the appellant's personal background.

7.  In November 2008 there was filed a document entitled "Appellant’s Grounds of Appeal Against Conviction and Sentence" which radically changed the basis of both appeals. A matter of days before the scheduled hearing of the appeal a further document entitled "Appellant’s Amended Perfected Grounds of Appeal Against Conviction and Sentence"  was filed. A third ground of appeal against conviction was added as was one further ground of appeal against sentence. At the hearing, the additional ground of appeal against conviction, sensibly, was abandoned. Moreover, it was specifically indicated by Mr McCoy SC, who appeared for the appellant in the appeal but not in the court below, that no issue was taken after all concerning the question of exclusive control. Five grounds of appeal against sentence were advanced, the thrust of those grounds being that, as a result of an erroneous approach or factual error, the resulting sentence was manifestly excessive.

The offences

8.  Section 18 of the Prisons Ordinance reads, in its relevant parts:

(1) Any person who brings, … introduces or conveys into any prison, … other drugs, tobacco, money, … letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence and shall be liable on conviction to a fine of $2000 and to imprisonment for 3 years.

(2) Any officer of the Correctional Services Department or other person employed in the prisons who contravenes or permits any contravention of the provisions of subsection (1) shall be liable, in addition to the above punishment and any other punishment, to forfeit his office.

9.  Section 18A of that Ordinance reads, in its relevant parts:

(1) Except where authorized by rules made under section 25 or by the Commissioner, any officer of the Correctional Services Department or other person employed in the prisons who-

(a) while in a prison …, has in his possession, whether on his person or in any receptacle in his custody, any prohibited article; (b) …

shall be guilty of an offence and shall be liable on conviction to a fine of $2000 and to imprisonment for 3 years.

(2) In subsection (1), "prohibited article" … means any … harmful or deleterious substance… or other drug, tobacco, money, clothing, provisions, letter, paper or book.

10.  Section 23(1) of the Pharmacy and Poisons Ordinance makes it an offence to be in possession of a Part 1 poison other than in accordance with that Ordinance, the proof of which lies on the possessor. Thus, the issue of whether the appellant was authorised to possess the substances for the purposes of the Prisons Ordinance has no relevance to an offence committed under the Pharmacy and Poisons Ordinance.

11.  Despite the length of the trial before the magistrate, the facts which gave rise to the charges were straightforward. The appellant had been serving at the Tung Tau Correctional Institution from August 2005. He was the officer in charge of a dining hall. One of his duties was to supervise prisoners in the cleaning party in the dining hall. On 23 May 2007 the appellant was arrested by officers of the ICAC at his place of work in respect of offences under the Prevention of Bribery Ordinance and under the Prisons Ordinance. He was cautioned. He was subjected to physical search: also searched were a nearby dormitory where a number of his private possessions had been left; a locker in the dining hall, a key to which was found in his possession; and the Appellant’s home. In the course of those searches various items, including those listed in the charges, were found. There was also a variety of items which were not authorized but in respect of which no charges were laid: these included seven loose cigarettes found on his person, in addition to a full packet of 20 cigarettes which he was authorised to possess.

12.  He was questioned shortly after his arrest. He was interviewed twice further that day, those interviews being video recorded. It was an admitted fact that he participated voluntarily in each interview.  Regrettably, the interviews dealt skimpily with the located items which resulted in the charges.

13.  The two tablets which formed the subject matter of Charge 1 were seized from the appellant’s person. One of the tablets contained diclofenac, a substance more commonly known by its trade name of Voltaren, and one contained famotidine. It should be noted that Charge 2 had charged the appellant with unlawful possession of the diclofenac tablet but this charge was withdrawn by the prosecution when the appellant produced what the magistrate described as a "medical certificate" which, presumably, authorised the possession of that tablet. It should also be noted that each of those two tablets was found in a blister pack which originally contained 10 tablets but each of which then contained only the tablet found during the search. It is appropriate to return to this aspect when considering the appeal against sentence.

14.  Four transparent resealable plastic bags were found in the dining room locker to which the appellant had a key: those bags contained 25 tablets which contained atropine, 68 tablets which contained chlorpheniramine, 27 tablets which contained paracetamol and 10 tablets which contained bromhexine. The tablets contained in those four bags together formed the subject matter of Charge 3 whilst the 25 tablets which contained atropine formed the subject matter of Charge 4. Of relevance when considering the inferences to be drawn for considering sentence, it is to be noted that a further 22 empty resealable plastic bags were found there.

THE APPEAL AGAINST CONVICTION

15.  One of the submissions made during argument against conviction related to the effect of the magistrate's warnings against self-incrimination to what was asserted to be "prosecution witnesses" who then invoked their right to decline to answer questions. This situation arose during cross-examination apparently because of the appellant's assertions in his interviews that the introduction of unauthorised articles, such as cigarettes and tea but also including some medications, was a common practice amongst staff of the Correctional Institution, a practice which was either expressly sanctioned by superior officers or well known to but ignored by them, thus being tacitly sanctioned. It was said that this potentially gave rise to a mistaken belief on the part of the appellant that he had the requisite authority.

16.  The magistrate presumably thought it necessary to give such warnings to those witnesses to whom it was to be suggested that they had sanctioned, or turned a blind eye to, this practice lest they give evidence which may leave them open to prosecution under s.18(2) of the Prisons Ordinance. Whether the magistrate was correct or not in following this course was not the thrust of this submission: the contention was that the exercise of the right against self-incrimination by the witness/es adversely affected her, and, now, my, ability to assess the evidence insofar as a possible defence of mistaken belief is concerned.  In the event it did and does not.

17.  Albeit that no reference is made in the Grounds of Appeal to such a defence, this approach was foreshadowed in the appellant's skeleton arguments as being a defence open to the appellant. It was also raised at trial and specifically considered by the magistrate in her Reasons for Verdict - contrary to the assertion made in the initial Grounds of Appeal.

18.  As a result of that submission and following upon discussions with counsel, at the conclusion of the hearing of the appeal I sought a transcript of the evidence of the third prosecution witness, who had been the immediate superior of the appellant and whose evidence appeared likely to be particularly germane. I directed that the parties submit such further written submissions in respect of that evidence as they wished to make within stipulated periods. Neither party sought to make further oral submissions. I have had the advantage of reading the transcript and the submissions.

19.  As the appellant now accepts in his further submissions, at no stage was PW3 warned against self-incrimination. Only one witness was warned against self-incrimination, that being PW9. In my judgment those warnings in no way hampered the magistrate, or hamper me, in arriving at a decision: there is ample evidence. Moreover, it was unnecessary for the magistrate, a professional judge sitting alone, to have recorded a “warning” to herself along the lines of that contemplated in Wayne Edward Jones v R 2005 NWSCCA 443 as suggested by the appellant.

Grounds of Appeal

20.  The Grounds of Appeal against conviction read as follows:

1.  The learned Magistrate erred in rejecting the affirmative defence case, set out in the Appellant’s caution statement P38, that the Appellant had been authorised by his former superior Mr Chuk, a Duty Officer, to use painkillers within Tung Tau Correctional Institute. The Respondent did not call Mr Chuk. The Magistrate erred in concluding that the Appellant had had no basis for and therefore had not asked Mr Chuk for the relevant permission.

2.  The learned Magistrate erred in rejecting the defence argument based on the Carltona principle which authorises a person, not otherwise entitled, to assume the powers of another and act in the name of that other. The Magistrate wrongly held against the defence case by wrongly deciding that the Carltona principle meant a formal delegation of power, whereas it means the exercise of the power of another (who is authorised by statute) in the name of that other. The Carltona principle is based on administrative convenience and the relevant practice was sanctioned by Mr Chuk.

The issue of actual authority

21.  Implicit in the first ground is that the appellant had actually received authority from Chuk to bring into or possess the various substances within the Correctional Institution. As previously noted, the appellant accepted when interviewed that the two tablets which formed the subject matter of Charge 1 had been found in his possession and asserted that the tablets forming the subject matter of Charges 3 and 4 had been accumulated over time, having been prescribed to him at Tung Tau Hospital on various occasions when he was feeling unwell. Consequently, in respect of Charges 1 and 3 the appellant will be guilty of the offences under ss.18 and 18A of the Prisons Ordinance unless he was authorised by the Rules made under s.25 of that Ordinance or by the Commissioner for Correctional Services: in respect of Charge 4 the appellant will be guilty of the offence under s.23(1) of the Pharmacy and Poisons Ordinance unless his possession is in accordance with the terms of that Ordinance.

22.  It must be said that there was documentation and some oral evidence before the magistrate which indicated that the appellant had been injured some years before and may well suffer residual discomfort or pain.

23.  Correctly, it is not suggested on behalf of the appellant that the Rules formulated under s.25 of the Prisons Ordinance authorised the appellant to be in possession of the substances referred to in Charges 1 and 3. Consequently, the real issues were, first, whether the appellant in fact had the delegated authority of the Commissioner of Correctional Services; secondly, if not, whether the defence of mistaken belief was available to him.

24.  The only material before the magistrate, and thus before me, relating to the appellant having been granted authority is to be found in one interview of the appellant, the transcript of which became Exhibit P38. That claim arose during the interview when the appellant was being questioned about his authority to possess another substance, which he claimed to be herbal medicine, which had been found in the locker in the dining hall. The following exchanges occurred:

“497  Q:   ... just now you... mentioned that... when you just got to Tung Tau... that officer...

498   A:    That’s Chuk, sir, yes.

499   Q:   ... he permitted you to do so?

500   A:    Yes, well, at that time... he saw that I had painful feet...

502   A.   Well at that time I just took those painkillers that kind of thing only, not that good. Well I consulted those Chinese herbalists...

504   A:    Well for those Chinese herbalist now I consulted him sometime in March. Well he taught me to do this.... he prescribed this medicated powder to me. Then I used this to make a drink. Well I started to drink it since sometime in March.

505   Q:   ... sometime in March this year?

506   A:    ... sometime in March this year.

...

511   Q:   Well, if you hadn't [drunk it prior to March], why could you tell that Ah Sir that you had to drink such thing once you've got to Tung Tau?

512   A:    No, I was on medication...

514   A:    I will feel pain in the spine all the time... and also... pain in the feet and that kind of thing.

516   A:    ... upon arrival there... still... I had to be admitted to the accident and emergency department frequently to have an injection because the pain was so severe.

518   A:    Well, being admitted to the accident and emergency department, that is, sometimes, seven days, sometimes 10 days of that of sick leave... sometimes four days... the DO said to me "Hey, don't make it difficult for both of us". He said that at our place, as people seldom took sick leave in such small division like this. That means there’s a shortage of staff... He said, "Do you have anything to deal with that?". Well I had to take painkillers or something like that. He said "Do you have that kind of painkillers?" I said yes. The doctor prescribed that to me. The prescription was made once every three months. I would be given the prescription once every three months...

520   A:    Well he said it didn't matter. I said “Then if it's the case, I have to take it here for consumption then.” He said "Okay. It doesn't matter for this. It's because when you feel the pain you've got to take it then.”

521   Q:   … at that time, you just told Ah Chuk sir that you would bring along painkillers instead of talking about such of this powdered medicine right?.

522   A:    That is, I, to our present DO Yu Sir, I also told him that I felt pain.

524   A:    Well he also said, "I see. Okay. Well you... if you have brought it along, you take it then.””

25.  The appellant was being quite specific: he had sought permission, he said, from two superior officers, Chuk and Yu, to bring in and to have in his possession herbal medicine and prescribed medicines in the form of painkillers for the pain which he said he experienced in his spine and his feet. These exchanges then must be viewed in the light of the appellant's earlier descriptions during that interview of the nature of the tablets which form the subject matter of Charges 3 and 4 and the purpose for which they had been prescribed to him. He said:

“299  A:   ... these medicines are flu remedies, and also those are anti-phlegm pills. At that time I had a lot of phlegm. This is for stopping diarrhoea, relieving abdominal pain, stopping diarrhoea. Well, these Panadol and cold tablets are those for curing flu.

301  A: …they were … prescribed by the hospital there.

305  A: Our Tung Tau Hospital.

313  A: ... when we felt unwell... we would obtain... some of these, that is, flu remedy, cold tablets from the hospital. When we had diarrhoea, we would obtain some anti-diarrhoea pills and took them.

315  A: ... it's unreasonable for you to say you had flu and you called for an ambulance to take you to the accident and emergency department.”

26.  It is thus perfectly clear from his own answers during that interview that the tablets which form the subject matter of Charges 3 and 4 had nothing to do with pain in his spine or his feet: the substances involved were either decongestants or suitable for treating diarrhoea.

27.  There was clear evidence from the current senior officer of the appellant, whom he had called “Ah Yu Sir”, namely YU Shing, PW3, that, to use the magistrate’s summary:

“... if staff were unwell, they should see the doctor in the TTCI hospital for medical attention and medication. The staff would consume the medication in hospital. The remaining medication would remain in hospital whilst the staff is on duty and would only be given to the staff when he goes off duty. The staff is required to take the medication away from prison.... If the staff were required to take medication whilst on duty he would have to go to the hospital. He would not carry the prescribed medication with him on duty.”

28.  PW3 accepted that, as the appellant had asserted in his interview, he, the appellant, had reported that he suffered ongoing pain. However, PW3 specifically disputed that he had suggested that the appellant take a "painkiller": he had suggested, he said, that the appellant go to hospital, adding that the appellant is "... a very strong person. Even the hospital granted him a sick leave, he insisted not to go." – which is entirely contrary to what the appellant said in his interview (see §24 above).

29.  There was also compelling evidence from NG Yuk-chuen, PW6, a Principal Officer in charge of the Correctional Institution hospital concerning the procedures to be followed but which also established that tablets containing atropine were not kept on the premises. It follows that, contrary to what the appellant asserted, those tablets could not have been prescribed at Tung Tau hospital.

30.  After an industrious consideration of their evidence and their credibility, the magistrate found each of these witnesses, PW3 and PW6, in particular, to have been honest and credible. In these circumstances, it is hardly surprising that the magistrate attached no weight to the explanations contained in the appellant's interview, assertions which had been untested by cross-examination.

31.  Moreover there was the appellant’s response to questions for possession on his person of loose cigarettes in addition to the unopened, authorised, packet. Although no charges flowed from their possession it is appropriate to have regard to his explanation when assessing the weight to be placed, generally, on the exculpatory portions of his interview: that explanation was wholly improbable.

32.  Complaint is made that the magistrate failed adequately to take into account the appellant’s “clear record and good character” in assessing what weight to attach to the exculpatory portions of his statement as well as his propensity to commit the offence. The magistrate was well aware that the appellant had no criminal convictions – he would not have been in that job if he had. What weight to attach to these factors in favour of an accused is a matter for the tribunal. I, too, attach no weight to the exculpatory portions of the appellant’s interviews.

33.  Consequently, I am satisfied that at no stage did the appellant seek, and thus obtain, authority from any of his superior officers to possess the substances referred to in the charges. The claim that the appellant had been granted permission to possess the various substances is entirely fanciful. There is simply no evidence whatsoever such as to have necessitated the prosecution calling Chuk as a witness.

34.  In my judgment, this finding renders unnecessary any consideration of the second ground of appeal for whether or not the principle enunciated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 would have applied to the appellant's superior is irrelevant in the absence of any authority having been sought from him.

The claim of reasonable mistake

35.  These proceedings are a rehearing on the evidence before the magistrate: it is not my function to judge the magistrate, but rather to judge the case. However, the magistrate dealt fully with this defence in her Reasons for Verdict: she correctly set out the law and summarised the evidence.  I agree with her approach and her conclusion: I see no virtue in repeating what she said, simply differently phrased.

Charge 4

36.  The acceptance of the evidence of PW6 also disposes of the appeal against conviction on Charge 4. The only evidence of how the appellant came to be in possession of the atropine tablets was his claim during his interview that they had been supplied to him at the Tung Tau hospital. The evidence of PW6 contradicts this. There simply is no evidence that the appellant’s possession of those tablets fell within any of the circumstances set out in s.28 of the Pharmacy and Poisons Ordinance.

37.  For the sake of completeness I note that, at trial, it was sought to argue that “atropine” was not covered by the provisions of Part 1 of the Poisons List. The argument was not advanced on appeal: it should not have been advanced to the magistrate as it was without any foundation. Atropine is specifically included under the category “Alkaloids, the following”. The magistrate, fortunately, appreciated that atropine is an alkaloid.

THE APPEAL AGAINST SENTENCE

38.  My view in regard to the sentences in respect of Charges 1 and 4 differs substantially from that of the magistrate.  The sentence on Charge 3 and the order making all three sentences concurrent were correct.

39.  In respect of Charge 1 it seems to me that a much more lenient approach may be taken: Voltaren is a substance which is commonly prescribed as an anti-inflammatory medication which, notoriously, may irritate the stomach which famotidine is prescribed to counteract. It was not in dispute that the appellant had previously been injured. There was only one tablet of each contained in two separate blister packs which had, as noted, previously contained 10 tablets. Those blister packs were found on the appellant's person. Whilst certainly still recognising that it is a far from trivial offence for a Correctional Services officer to be in unauthorised possession of any type of substance, I would afford the appellant the benefit of considering that he had these tablets in his possession solely for his own use and that, had he applied for permission to have the substances in his possession, the evidence overall suggests that some form of accommodation would have been reached with him.

40.  In regard to Charge 4, a fine would have been appropriate. That, in my experience, is the usual sentence which is imposed in respect of possession of a Part 1 Poison. That it was possessed within the Correctional Institution is not a feature relevant to sentence for this offence: that is catered for by Charge 3.

41.  However, I agree with the principle of the magistrate’s approach in imposing an immediate custodial sentence in respect of Charge 3. The magistrate was fully entitled to take into account the surrounding circumstances, as she did, when determining the appropriate sentence. That is a perfectly proper approach to take: it is necessary to impose a sentence which reflects the overall criminality of the offence and to ignore relevant surrounding circumstances may well result in a failure to achieve that result.

42.  The irresistible inference to be drawn from the evidence as a whole, but particularly the large quantity of the tablets as well as the substantial number of resealable plastic bags, is that the appellant had introduced these tablets for the purpose of supplying them to others, including prisoners. There is, of course, no evidence that he actually had supplied any of the tablets to others by that stage, but that does not prevent the purpose of possessing the tablets from being taken into account for sentence.

43.  This conduct constitutes a real abuse of the trust imposed in the position which he holds: as an officer of many years service he would have known that to be so. Conduct of this nature impugns the integrity of the Correctional Services Department. I recognise that there likely will be other consequences for him as a result of these convictions: they, and the sentences, would have been avoided had the offences not been committed.

44.  That the substances themselves are, perhaps, not habit-forming or of an especially serious nature is no mitigation: at best for the appellant this factor simply does not aggravate sentence.

45.  It is self-evident that once a Correctional Services officer supplies even the most innocuous contraband to a prisoner he immediately made himself vulnerable to pressure by the prisoner to supply more items of any description. His position is immediately compromised. The risk that this situation poses is self-evident. It is such as to call for emphasis on the deterrent aspect of sentence, even though the appellant may be a first offender. Six months imprisonment is appropriate. I bear in mind that as a Correctional Services Department officer he will suffer particular hardship during his period of incarceration.

CONCLUSION

46.  The appeal against conviction on each of the three charges is dismissed and the convictions by the magistrate are confirmed.

47.  The appeals against sentence on Charges 1 and 4 are allowed: the sentences imposed are set aside and in their place the appellant is to pay a fine of $5000 in respect of Charge 1 and a fine of $2000 in respect of Charge 4. The appeal against sentence in respect of Charge 3 is dismissed and the sentence of 6 months imprisonment confirmed: the appellant is to be taken into custody to serve his sentence.