HKSAR v. WONG MUK HON AND ANOTHER

CACC 458/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 458 OF 1999

(ON APPEAL FROM HCCC 47 OF 1999)

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REASONS FOR JUDGMENT

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 31 August 1999, following a trial before Lugar-Mawson J and a jury, the Applicants (D1 and D2 respectively) were each convicted on a joint charge (count 2) of trafficking in a mixture weighing a little over 2.2 kilogrammes containing approximately 1.67 kilogrammes of heroin hydrochloride. D1 was additionally convicted (on count 1) of possession of a mixture containing 1.61 grammes of heroin hydrochloride, having been acquitted of the more serious alternative of trafficking. The judge imposed a sentence of twenty-five years' imprisonment on count 2 in respect of each Applicant. D1 received a concurrent sentence of twelve months on the first count.

2. The Applicants sought leave to appeal against conviction on count 2 and the sentence imposed upon it. At the conclusion of the hearing on 16 January 2002, we dismissed the applications relating to conviction and D1's application so far as his sentence was concerned. However, we gave D2 leave to appeal against his sentence and, having treated the hearing as the appeal, we reduced his sentence by six months. We now give our reasons for these conclusions.

Prosecution case

3. The case presented by the prosecution against both Applicants was extremely straightforward. On 23 October 1998, police stopped D1 outside a 16th floor room in Sau Yuen House on the Chuk Yuen South Estate in Kowloon. They found the small quantity of heroin referred to in count 1 in D1's trousers. This was inside a transparent plastic, resealable, medicine bag. D1 immediately admitted possession of the heroin saying that it was for his own consumption.

4. Also in D1's possession, when he was arrested for the offence in count 1, was a set of keys for a second floor flat at 11-13, Fuk Lo Tsun Road in Kowloon City (Room B) where he was taken to next.

5. It was inside Room B that the drugs in count 2 were discovered and D2 was arrested. D1 was the registered tenant of Room B.

6. A search of a drawer under the sofa-bed in Room B led to the discovery of all the heroin in count 2. There were five blocks wrapped in yellow plastic sheets and thirty-two small, transparent plastic, resealable, medicine bags which were inside a larger yellow plastic bag. The small medicine bags were of a similar kind to the one found in D1's possession on his arrest and all of them contained heroin. There was other equipment in the same compartment in the sofa-bed, such as scales, which was referable to the packaging and distribution of drugs.

7. Subsequent investigations revealed D1's fingerprint on the wrapping of one of the blocks of heroin and his palm-print on the yellow plastic bag which contained the thirty-two medicine bags filled with heroin. D2's fingerprints were not found on any of the drug-related items.

8. When D1 was asked what he knew about this quantity of drugs, he replied: "I simply rented a flat for Sik Chai (D2) to reside in. The white powder has nothing to do with me." D2 allegedly said to police: "Sir, let me off, I've just got a little bit out of it." Later, in a video-recorded interview, D2 went on to make other admissions which, if accepted, amounted to a confession to trafficking in heroin. D2's alleged confessions were admitted in evidence following a voir dire to determine the issue of voluntariness.

9. The prosecution's allegation against D1, based entirely on the circumstantial evidence to which we have referred, was that there was an irresistible inference that D1 was in possession of the drugs in Room B jointly with D2 for the purposes of trafficking in them.

Defence case

10. D1 did not give evidence whereas D2 opted to testify. He denied having said anything incriminating at the time of his arrest. He alleged that the answers he was recorded as giving in his video-recorded interview were fabricated and rehearsed by the interviewing officers prior to its commencement. D2's account was that he was merely in Room B for the purposes of smoking heroin and that he had no knowledge of the drugs in the drawer of the sofa-bed. Contrary to his account to police in his video-recorded interview, where he had attempted to exculpate D1, in his testimony at trial D2 gave evidence which tended to inculpate D1.

D1's application on conviction

11. Mr Marash, SC, on D1's behalf, has advanced three substantive grounds of appeal. We can deal with grounds 1 and 2 together as both of these focus on a part of the judge's summing up where the jury was given directions about the approach they should take to the reply given by D1 at the time the drugs were discovered in Room B. This reads:

"You will also remember that it was brought out in (counsel for D1's) cross-examination of the 2nd prosecution witness, DPC 48454 Lau Yip-po, the officer who arrested (D1) outside Room 1620B at Sau Yuen House, that when the heroin was found under the sofa-bed in the compartment in Room B of Flat A, (D1) was cautioned and asked what he knew about it and (D1) said this, 'I simply rented a flat for (D2) to reside in. The white powder has nothing to do with me.' (D1) therefore denied knowing anything at all about the heroin hidden under the sofa-bed at Room B in Flat A at 11-13 Fuk Lo Tsun Road. If you are not sure that (D1) made that denial you must disregard this evidence that was given in the course of DPC 48454's cross-examination. If, on the other hand, you are sure that the defendant made that denial, the law is this: it is evidence not of its truth, but it is evidence of what (D1's) reaction was at the time the Detective Police Constable, Constable 48454, questioned him about the heroin found in Room B, and that is all." (Tr. p. 23)

12. Mr Marash alleged in his first ground that the judge fell into error when classifying D1's reply as having been wholly exculpatory or self-serving. It was this, he submitted, which had led to an erroneous direction that D1's statement was not evidence of its truth but only of his reaction at the time he was being questioned.

13. In his second ground, he contended that the judge had erred in relation to the burden of proof when directing the jury to disregard the statement made by D1 to an officer in Room B if they were not sure D1 had made such a statement.

14. We can deal with these matters very shortly. D1's statement that he had rented "the flat" (Room B) went to a matter which was never an issue in the case. The tenancy agreement, signed by D1, was put in evidence as exhibit P77. The only issues on count 2, as the judge rightly reminded the jury, were:

".... did either or both defendants have the .... heroin in their possession? And if they did, did they possess it for the purposes of trafficking in it?" (Tr. p. 29)

15. It is apparent that the prosecution had not sought to introduce D1's response to the finding of the drugs in Room B because they did not rely upon it as probative of anything. When D1's response was elicited during cross-examination by D1's counsel from the officer who had written it in his notebook, this was never challenged. With this in mind, we have had the greatest difficulty in understanding why the judge found it necessary to invite the jury to determine whether they were sure D1 made a denial in the terms recorded by the officer. There was no suggestion from any quarter that D1 had said anything which differed from what the officer had written down. It was an unnecessary direction to have given but, at the same time, it did no harm to D1's case. It is abundantly plain that the jury could only have concluded on the evidence that D1 had denied having anything to do with the drugs.

16. This being said, Mr Marash's real complaint was that D1's response was only partly favourable because the other part of D1's oral statement was a confession to renting the flat at Room B. Mr Marash submitted, although in fairness to him he did not press his arguments on grounds 1 and 2 strongly, that if the judge had dealt with that statement as a 'mixed' statement, containing a denial as well as a damaging admission, the judge would then have had to direct the jury that the whole of the statement had to be considered in order to determine where the truth lay, by contrast to the direction which is appropriate for a wholly exculpatory statement, namely that it was to be regarded merely as evidence of reaction.

17. In advancing this proposition, Mr Marash relied an English decision in R v Garrod [1997] Cr LR 445 where the Court of Appeal held that where a defendant's statement contained an admission of fact which was significant to any issue in the case, in the sense that it was capable of adding some degree of weight to the case for the prosecution on an issue which was relevant to guilt, the statement must be regarded as 'mixed'.

18. In the present case, however, not only had the prosecution not relied on D1's statement, the statement did not relate to any issue which needed to be addressed by the jury.

19. For a court to decide whether a statement is exculpatory or mixed must necessarily involve looking at the statement in the full context of the proceedings. In the present case, the only possible interpretation of the words used by D1 is that they were meant to be taken as a complete denial of the offence. There was no issue whatever about his connection with Room B as the registered tenant.

20. Accordingly, grounds 1 and 2 failed.

21. In his third ground of appeal, Mr Marash submitted that the judge had erred in failing to direct the jury that "the fact that (D2) had made a statement to the police, which was consistent with D1 being innocent of the allegation in count 2, was a matter they could take into account in considering the case against (D1)."

22. The judge directed the jury that when considering the case against D1 they were to disregard what D2 said to the police upon arrest and in his video-recorded interview. The contention, as Mr Marash eventually formulated his argument, was that D2's out of court statements were relevant, not as to the truth of their content but as to the credibility of D2's oral testimony which had ultimately formed part of the case against D1. Since D2 put a degree of blame on D1 in his testimony, it was submitted that the judge should not have told the jury to disregard altogether what D2 had earlier said to police as this amounted, when compared to D2's testimony in court, to a previous inconsistent statement which affected D2's credibility generally. More specifically, in his video-recorded interview, D2 had said that D1 had rented the flat for him for a payment of $2,000 but that he rather than D1 was the tenant there. He said also that D1 knew nothing about the drugs and that he had acquired the heroin on his own.

23. The passage in the summing up about which the complaint in ground 3 was directed read as follows:

"One last reminder, members of the jury, before I leave off discussing (D2's) alleged admissions with you, as I said to you earlier this afternoon, a statement implicating defendant A made by defendant B out of court is not evidence against defendant A. I remind you, you must disregard what (D2) said to the police, both on arrest at Room B in Flat A of the Fuk Lo Tsun Road premises, and in the video-recorded interview at the Kai Tak Operational Base, when you consider the case against (D1). Again I remind you what (D2) told you from the witness box is evidence against (D1)." (Tr. pp. 42-43)

24. This direction to the jury, which was itself a repetition of an earlier direction in similar terms, correctly followed a well-established rule of evidence. Mr Marash accepted this, so far as it went, but he contended that the judge had overlooked that what D2 had said in court against D1 was undermined by D2's previous inconsistent statement. The judge should, Mr Marash submitted, have gone on to tell the jury to have regard to this when considering D2's credibility in the context of the evidence D2 had given against D1.

25. It is perfectly in order for a judge to direct a jury that an out-of-court statement by one defendant is not evidence in the trial against a co-defendant. That, however, is not the issue we have to determine. The issue is whether, in this particular case, the judge should have said something more and whether, specifically, he was correct in suggesting, as it seems he did, that the out-of-court statements of D2 were to be disregarded for all purposes.

26. We take the view that, strictly speaking, the judge was in error when he told the jury, without qualification, to disregard what D2 said to the police when they considered the case against D1. D2's oral testimony was part of the case against D1. The fact that the prosecutor did not rely on D2's evidence does not mean that D2's evidence was not, in the event, part of the case against D1. In this respect, therefore, there was one aspect in which D2's out-of-court statements fell to be examined and to this extent the jury should have been told to have regard to them. The prior statement by D2, exculpatory of D1, constituted a prior inconsistent statement by D2, as it was materially inconsistent with his oral testimony about D1's involvement. It was therefore relevant to D2's credibility.

27. We appreciate the fact that in the passages which are criticized, the judge was concerned to tell the jury that an out-of-court statement by D2 was not evidence against D1, although it is difficult to see how in this particular case D2's earlier statements, being essentially exculpatory of D1, could in any event have constituted evidence against D1. In these circumstances, the unqualified direction to the jury to disregard the earlier statements of D2 when considering the case against D1, was an error.

28. Whether, in its full context, the error was material is debatable. We note, firstly, that the judge had already warned the jury to examine with special care the credibility of D2's evidence about D1. He went on to say:

".... for the 2nd defendant in saying what he did may have been more concerned with protecting himself than about speaking the truth. Please bear that risk in mind before deciding whether or not you feel able to accept what the 2nd defendant told you about the 1st defendant." (Tr. p. 21)

29. Secondly, it is accepted that defence counsel made no attempt, either in cross-examination of D2, or in his closing address, to use the out-of-court statements as undermining the credibility of D2's oral testimony. What he did instead, although this may, if successful, have had the same effect, was to seek to rely on the out-of-court statements by D2 as supportive of D1's protestation of innocence. This was impermissible, and it may be that this was what the judge was trying to correct by the directions he gave. If so, he did not use the correct formula.

30. In all the circumstances, we do not consider the directions on this aspect to have been material. Had we taken a contrary view, we would unhesitatingly have applied the proviso to section 83(1) of the Criminal Procedure Ordinance in D1's case. Quite apart from the two factors to which we have just made reference, defence counsel made no complaint at the close of the summing up when counsel were asked if there were any points they wished to raise. Added to this, the evidence against D1 was very strong indeed and, furthermore, it is obvious from the verdict against D2, that D2's credibility stood for nothing with the jury.

31. Ground 3, therefore, failed.

Conclusion on D1's conviction application

32. There was nothing to suggest that the verdict on count 2 was unsafe and unsatisfactory and, accordingly, D1's application for leave to appeal against conviction was dismissed.

D2's application on conviction

33. In addition to the initial grounds of appeal which were written by D2 on 9 September 1999, we have received copious correspondence in which he has set out his complaints at length. These are contained in letters dated 1 April 2000, 7 June 2000, 18 May 2001 and 17 July 2001. We have been supplied also with three reports dealing with D2's medical and psychiatric condition between January 2000 and June 2001.

34. Essentially, D2 had five complaints. In summary, these are that:

(1) The video-recorded interview was made by him after assaults, threats and inducements which he contended was supported by the finding of a small quantity of drugs in his possession whilst he was in hospital after his interview.

(2) His criminal record was wrongfully and unfairly put before the jury.

(3) The trial judge had not believed him, had wrongly admitted the video-recorded interview and was biased in his directions to the jury.

(4) The video-recorded interview was irregular and the tape should have been sent overseas for examination pursuant to his request.

(5) A prosecution witness, Police Constable 48454 Lau Yip-po, was subsequently convicted of corruption offences which supported the Applicant's contention that the police officers in the case had "framed him up".

35. Contained in these complaints there are really three serious allegations made by D2 which we need to address.

36. Firstly, an examination of the summing-up does not support any suggestion of bias on the part of the judge. On the contrary, the trial judge reviewed the whole of the evidence against D2 in a balanced and accurate way and highlighted the salient points which had been advanced on his behalf. In particular, in respect of the use to be made of D2's alleged admissions, the trial judge was clear and emphatic. He said:

"If indeed the 2nd defendant is correct, or may be correct, when he makes those allegations against the police, and against Constable 50143 and Detective Sergeant 19503 in particular, then you may think it unsafe to rely on the oral admission, the post-recording in the notebook and on the video-recorded interview." (Tr. p. 42)

37. The second matter is concerned with D2's criminal record. This was disclosed during the cross-examination of D2 by counsel for D1. This arose because D2 had impugned the character of his co-accused by alleging that D1 was involved in a conspiracy with the police and was trying to "frame him up" by getting him to admit to being the sole person responsible for trafficking in these drugs. It was in these circumstances that D1 was permitted to introduce D2's criminal record, pursuant to section 54(1)(f)(iii) of the Criminal Procedure Ordinance, Cap. 221. Any potential prejudice arising from that disclosure was properly addressed in the directions of the trial judge when he said:

"You have heard that the 2nd defendant has previous convictions. You have heard that he has convictions for loitering. He has convictions for robbery. He has convictions for stealing and he has convictions for possession of dangerous drugs. That has been given in evidence because he gave evidence against the 1st defendant that implicated the 1st defendant in a plot with the police officers to manufacture a case against him - the 2nd defendant; in short, a plot to frame him. Because of that, Mr Duncan, counsel for the 1st defendant, was permitted to cross-examine him on his character."

"What is the relevance of the 2nd defendant's previous convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the 2nd defendant's character - the man who made the attack - may assist you to judge the truthfulness of his evidence when you come to consider this matter. You must not assume that the 2nd defendant is guilty, or that he is not telling the truth, because he has previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence charged in the 2nd count on the indictment. They are relevant only as to whether or not you can believe him ...." (Tr. pp. 21-22)

38. Thirdly, we turn to the subsequent conviction of PC 48454 Lau Yip-po on charges of corruption, set against D2's allegation that this provided some support for his contention at trial that he, as an innocent party to these events, had been framed by the police.

39. Lau Yip-po committed two offences of corruption, we were told, at the end of May 2000. He was in due course sentenced to concurrent terms of three months' imprisonment, having pleaded guilty to these offences.

40. Lau Yip-po gave evidence in the matter presently before us as the person who had arrested D1. He had a very limited involvement with D2 and this came about only because he had gone with D1 and other officers to Room B. However, it was PC 50143 Ho Kai-leung (PW3) who arrested D2 and subsequently interviewed him.

41. At trial, before the answers allegedly provided by D2 in his interviews were challenged in a voir dire, the defence handed in written grounds of objection to the admissibility of this evidence. These made no reference to Lau Yip-po. The only allegations were against PW3 and Sergeant 19503 who had been present during the video-recorded interview. D2 in due course gave evidence which was broadly in line with the written grounds of objection tendered on his behalf.

42. Not only had there never previously been a complaint against Lau Yip-po, but the events which led to Lau Yip-po's conviction occurred in late May 2000, nine months after the trial had ended and about nineteen months after the events with which the trial was concerned. In our opinion, there was no basis for saying that the integrity of the case against D2 was compromised by the corrupt activities of Lau Yip-po a long time afterwards and in a wholly different context.

43. As to D2's other complaints about police conduct, these were canvassed at trial during the voir dire and in the trial generally. D2 was given a full and fair hearing and his complaints carried no weight.

Conclusion on D2's conviction application

44. The application, so far as it concerned the conviction of D2, was therefore dismissed.

Sentence

45. Turning lastly to D1 and D2's applications for leave to appeal against their sentences, both of which were made in person, it is to be observed that neither of the Applicants had been able to advance anything of significance in mitigation. D1 had seven previous convictions and had previously served a sentence of four and a half years' imprisonment for trafficking in dangerous drugs. D2 had numerous previous convictions for drug-related offences and had twice served more than three years' imprisonment for robbery.

46. The value of the heroin found in Room B was said to have been just over $1,386,000 if sold in 5-gramme units, which is, to some extent, a demonstration of the degree of trust placed in D1 and D2 by those who employed them to traffic in these drugs. It is true that D1 and D2 were not said to be the ringleaders of drug syndicate with which they were involved, but the judge had this in mind when he said:

"You are no more than warehousemen, storekeepers, packers, but this evil trade needs warehousemen and packers just as much as it needs bosses, and it is the policy of the courts to sentence those who in any way involve themselves in trafficking in dangerous drugs very severely." (Tr. p. 59)

47. These observations closely reflect what this court was subsequently to say in HKSAR v Manalo, Irene Burnales [2000] 4 HKC 636; [2001] 1 HKLRD 557.

48. There was, no merit in D1's application for a reduction in his sentence. Accordingly, his application was dismissed.

49. So far as D2 was concerned, it came to our notice that he had been sentenced to six months' imprisonment in April 1999 for his possession of a small amount of heroin which, following his interview in the present matter, he was found to have kept concealed from the police. By the time he received his sentence of twenty-five years on the trafficking count, he had effectively completed his six-month sentence on the possession charge. We consider that if the judge had been made aware of this factor, he would have taken this into account by a downward adjustment of six months to ensure that D2's sentence was not extended beyond twenty-five years.

50. Accordingly, as a matter of principle, we granted D2 leave to appeal against his sentence. Treating the hearing as the appeal, we reduced his sentence by six months to twenty-four and a half years' imprisonment.