HKSAR v. LEE HOI CHEONG

CACC379/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.379 OF 2004

(ON APPEAL FROM DCCC 387 OF 2004)

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REASONS FOR JUDGMENT

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Hon Suffiad J (giving the judgment of the Court) :

1. On 18 August 2004 the applicant (“D3”) was convicted after trial of two charges of trafficking in a dangerous drug (Charges 1 and 2) and one charge of keeping a divan (Charge 3) before HH Judge Yuen in the District Court and was sentenced to a total of six years’ imprisonment.

2. The applicant now applies for leave to appeal against convictions only in respect of all three counts.

3. After hearing the applicant on his grounds of appeal, we refused leave to appeal, dismissed his application and indicated that we would give our reasons later, which we now do.

The prosecution’s case and evidence

4. The prosecution’s case was based mainly on the evidence of two undercover police agents posing as drug addicts.  They were PC59056 (“PW1”) and PC58196 (“PW2”).

5. On 11 April 2003, PW1 and PW2 went to the mezz floor of 302-304 Shanghai Street in Yaumati (“the premises”) upon instructions posing as drug addicts.  They were let into the premises by D1 through a gate and a metal door.

6. Inside the premises, they were led by D1 to a second metal door which was unbolted from the inside after D1 knocked on it.  They were led through this second metal door by D1 into a main room where six persons were seated all with heads drooping.  In this main room was a partition wall behind which was a smaller room referred to as ‘a cage’ in the proceedings below.  For the sake of convenience, that smaller room will likewise be referred to as “the cage” in this judgment.  There were two window-like openings on the partition wall separating the main room from the cage as well as a door giving access to the cage. 

7. From the photograph produced, it is apparent that the window opening on the right of the partition wall was larger than that on the left and close to the top bolt of the second metal door inside this main room.

8. After PW1 and PW2 were taken into the main room by D1, D1 pointed in the direction of the partition and told them to go to the window opening on the left side and buy drugs from the woman there.

9. D1 then turned round and walked out of the main room through the metal door from which he had led PW1 and PW2 into this main room.  When the metal door closed behind D1, PW1 saw a hand stretch out from inside the cage through the window like opening on the right side of the partition and secured the bolt of the metal door giving access to this room.

10. PW1 then approached the left side window opening in the partition.  He saw the applicant and a female (“D2”) seated inside the cage.  The female was seated near to the window like opening on the left while the applicant was seated near to the one on the right side.  Between them was a small table.

11. After a conversation with D2, PW1 paid her $200 in marked notes and D2 handed PW1 a small red plastic wrapping containing dangerous drugs which she took from a pink plastic bucket on the table.

12. PW1 and PW2 then walked aside and squatted down in the main room.

13. At this juncture, D1 came back into the main room through the same door by which he had earlier let PW1 and PW2 in.

14. Soon after there were shouts of “Police” and banging on the main door of the premises.

15. At the same time, PW1 heard a female voice from inside the cage saying “Flush the white powder away”.

16. PW1 then rushed out of the room to open the main door and gate of the premises to allow his police colleagues into the premises.  When PW1 returned to the main room with his other police colleagues, he put his hand through the window opening on the left side of the partition and unlatched the door to the cage from inside thereby gaining access into the cage.

17. In the meantime, when PW1 rushed out of the room to let in his police colleagues, PW2 inserted his right hand into the window opening on the right side of the partition to restrain the applicant.

18. When PW1 returned after letting his police colleagues into the premises, and obtained access into the cage, he saw D2 sitting there with her body bent and both her hands covering her head.  He also saw the applicant being restrained by PW2’s right hand inserted through the window opening.  The applicant was struggling and both D2 and the applicant were put under control by the police officers.

19. Ninety-nine packets of plastic wrappings containing drugs were recovered from the toilet bowl in the cage by the officers.

20. Upon later chemical examination by Government chemist, the packet sold to PW1 was found to contain a mixture of 0.35 gm which contained 0.27 gm of heroin hydrochloride which formed the subject of Charge 1.

21. The other 99 packets retrieved from the toilet bowl contained 19.92 gms of mixture which contained 15.53 gms of heroin hydrochloride and was the subject of Charge 2.

22. There was also found in the premises syringes and a notice posted on the partition in the main room with words in Chinese stating that syringes will be provided free of charge for all purchases exceeding $100.

23. PW2’s evidence corroborated that of PW1 as to how they, posing as drug addicts, obtained entry into the premises and into the main room as well as D1 telling them to buy white powder from the woman indicating the window opening on the left inside the main room.

24. PW2 gave evidence that when D1 left the main room after taking them in there, the hand which stretched out from the window opening on the right and which bolted the metal door from inside was the hand of a male.  In cross-examination he was able to say that the hand he saw bolting the door on that occasion was the hand of the applicant because he saw the face of the applicant when the applicant approached that window opening in the partition for the purpose of stretching out his hand from it to bolt the door after D1 went out.

25. PW2 also corroborated the evidence of PW1 as to the transaction which took place between PW1 and D2 leading to the purchase of the packet.  During the conversation between PW1 and D2 in that transaction, PW2 was able to look through the window opening on the right side to see the applicant seated on a piece of white board in the cage.  Later he came to know that the piece of white board was placed over a toilet bowl where the applicant was seated.

26. After the transaction between PW1 and D2 was completed and money had changed hands, PW2 pressed a button on his mobile phone in his pocket to signal his police colleagues waiting outside to raid the premises while the two of them waited for the arrival of their colleagues.

27. D1 returned into the main room and soon after the raiding party arrived.

28. When PW2 heard a female voice in the cage saying to flush the white powder away, PW2 ran to the window opening on the right side of the partition and in his evidence-in-chief PW2 said that he saw the applicant took away the wooden board, took the pink plastic bucket and poured the pellets in it into the toilet bowl.

29. However, in cross-examination, PW2 conceded that he did not actually see the applicant move the white board, pick up the bucket and pour its contents into the toilet bowl.  Rather he saw the back of the applicant through the window opening and saw the motion of the applicant’s left hand from behind and thereby concluded from it that the applicant was trying to dispose of the drugs in the bucket by flushing it down the toilet.

30. Upon seeing that movement of the applicant’s left hand from behind, PW2 then inserted his right hand through the window opening on the right side of the partition and his hand went across the applicant’s chest “like a seat belt” in order to restrain the applicant who he believed was trying to dispose of the drugs in the bucket by flushing it down the toilet.

31. After PW1 was able to gain access into the cage, PW1 assisted him to put the applicant under control.

Statements under caution of the applicant

32. The applicant was arrested by PC46258 (“PW5”) in the premises and cautioned for the offences the subject matter of the first two charges.  In reply to the arrest and caution the applicant said “The stuff was not flushed by me.”

33. In further reply when arrested and cautioned for keeping a divan, the applicant said “I do odd jobs downstairs.  I came to use the toilet just now.”

34. These replies by the applicant were immediately recorded down by PW5 in his notebook in the premises.

35. Back at the police station, PW5 made a post-record in his notebook about the earlier arrest, caution and the replies given by the applicant.  That post-entry was signed by the applicant.

36. Two further interviews under caution of the applicant by PW5 to clarify his earlier answers given when arrested and cautioned were recorded in writing and signed by the applicant.

37. The prosecution sought to produce into evidence the post-entry record as well as the cautioned interviews all signed by the applicant.

38. The applicant objected to their production on the grounds that the contents of all the statements were concocted by PW5, were not made voluntarily by the applicant in that the applicant had been assaulted and induced into signing the post-entry as well as the interview statements by being promised bail.

39. Determination of the admissibility of the disputed evidence was conducted by way of alternative procedure by the judge.  After hearing all the evidence and submissions, the judge was satisfied beyond all reasonable doubt that all the statements under caution were made voluntarily by the applicant.  She rejected all allegations of assault and inducements alleged after a careful consideration of all the evidence adduced and the issues involved.

40. Accordingly the judge admitted all the cautioned statements of the applicant into evidence.

The defence case of the applicant

41. The applicant gave evidence in his own defence at the trial.  It was his evidence that he was aware that drugs were provided in the premises because he had been to the premises on a number of previous occasions as a patron.  He knew that D1 was there to open the doors and D2 sold the drugs in the premises.

42. At the time of the police raid on this occasion he was in the premises for the purpose of buying drugs.  However, because he had to obey an urgent call of nature, he had asked D2 for permission to use the toilet inside the cage.  As he was urinating, D2 asked him to move aside and squeezed behind him to reach the window opening on the right of the partition.  After he had finished urinating at the toilet bowl in the cage, the police raided the premises.

43. The applicant also denied having signed the post-record and the two following cautioned interviews record voluntarily.

44. It was D2 who had poured the drugs into the toilet bowl during the police raid and asked him to flush the toilet.

45. PW2 had made up the story about seeing the applicant sitting on the board over the toilet bowl, that the applicant had latched the bolt of the metal door and that he had assisted D2 to dispose of the drugs by flushing them down the toilet bowl.

46. The applicant called a witness to testify on his behalf.  Yu Chi Keung, a convicted drug trafficker, gave evidence that he ran into the applicant on the day in question and went with the applicant to the premises.  He had understood that the applicant went into the cage to use the toilet bowl.

Findings of the judge

47. The judge, having heard all the evidence and seen the demeanour of the witnesses, found both PW1 and PW2 to be honest and truthful witnesses in giving their testimony in court.

48. She accepted all their evidence and found those facts stated by them in their evidence as being proven to the court beyond reasonable doubt.

49. There was only one aspect of the prosecution’s evidence which she did not accept as having been proved beyond reasonable doubt.  That related to PW2’s evidence that he saw the applicant’s hand stretching out from the window opening on the right of the partition to unbolt the metal door on the occasion that D1 returned to the main room after having taken PW1 and PW2 into the main room and having left that room previously.

50. The reason why the judge did not accept that evidence was because in the notebook of PW2, when he made a record of the events, as well as his witness statement PW2 had written that it was “AP2” (being a reference to D2) who had unbolted the metal door when D1 returned to the main room.

51. In his evidence given in court, PW2 explained that it was due to an oversight when he made that entry that he had mistakenly put down ‘AP2’ in his notebook when he had intended to write ‘AP3’ i.e. the applicant.

52. In the light of such evidence, the judge decided to give the benefit of the doubt to the applicant and did not make the finding that it was the applicant who had unlatched the metal door to allow D1 to re-enter the main room.

53. Apart from this one piece of evidence which the judge did not accept from the evidence of PW1 and PW2, the judge accepted the rest of their evidence.

54. In relation to the applicant, the judge made the following specific findings of fact.

(a)	That it was the applicant who had extended his hand through the window opening on the right side of the partition to bolt the metal door after D1 left having showed PW1 and PW2 into the main room.  In making this finding, she accepted PW2’s evidence that he had seen the applicant’s face through that window opening at the time the door was bolted.
(b)	That PW2 had seen the applicant inside the cage seated next to the table on top of a white board placed over the toilet bowl when PW1 was buying drugs from D2.
(c)	That when the main party of police attempted to gain entry to the premises, D2 had said the words “Flush the white powder away” to the applicant inside the cage, which was an irresistible inference to draw in the circumstances since only the two of them were in the cage.
(d)	Upon these words being said by D2, PW2 had seen from the back of the applicant, movement of the applicant’s left hand which led him to believe that the applicant was pouring something into the toilet bowl.  Thereupon PW2 at once put his right hand through the window opening to restrain the applicant.

55. In coming to these findings, the judge rejected the evidence of the applicant and his witness as being not capable of belief giving cogent reasons for her disbelief of their evidence.  Accordingly that defence evidence did not cast any doubt on the prosecution’s evidence which the judge accepted.

56. The judge further accepted the evidence of PW1 that when he gained access into the cage, he saw D2 sitting there with her body bent and her head in both her hands.  She thereby concluded that it was not D2 who had thrown the drugs into the toilet bowl, for if D2 had done so, D2 could easily have flushed away the drugs.

57. From the facts as found by her, the judge further concluded from what PW2 saw of the movement of the left hand by the applicant, she was able to draw the irresistible inference that it was the applicant who had emptied the contents of the bucket into the toilet bowl before he was restrained by PW2, but since he was not able to flush the drugs away, having been restrained by PW2, those 99 pellets of drugs were recovered from the toilet bowl by the police.

58. On the facts as found by the judge, the judge came to the conclusion that the applicant was jointly involved with D1 and D2 in selling the drugs there and managing the divan and therefore guilty of all three charges.

59. As for the cautioned statements of the applicant, the judge accepted the evidence of the prosecution witnesses and found those statements to have been made voluntarily by the applicant.  However, the judge took the view that the cautioned statements were largely exculpatory as regards the two trafficking charges.  In any event it was clear from her judgment that the judge did not rely on any of the cautioned statement, but rather on the evidence of PW1 and PW2 in convicting the applicant.

Grounds of Appeal by the applicant

60. The applicant has put forward some seven grounds of appeal against conviction which can be summarized as follows :

(1)	During the lunch adjournment on 4 August 2004 when the trial was taking place, the prosecutor was seen to discuss the facts of the case with the Officer in Charge of the case outside the courtroom when at the same time PW2 was nearby to them.  When the court was later informed of this occurrence, the court indicated that it would look into this matter, but did not touch on this matter in its judgment.
(2)	When the applicant’s counsel cross-examined the prosecution witnesses in the trial, the prosecutor hinted answers to the witnesses on a number of occasions and the witnesses changed their testimony on a number of occasions but their evidence were still accepted by the judge.
(3)	A guideline in 1999 to the effect that video interviews should be conducted regarding suspects in criminal cases as well as instructions in the Police Force that video recorded interviews of suspects should be conducted was not followed in this case.
(4)	The trial judge was wrong to have relied on PW2’s inference of what he heard D2 say “Flush the white powder away” to find the applicant did flush the drugs down the toilet.
(5)	There is inconsistency between the evidence of PW1 and PW2.  PW1 said it was D2 who dealt with him.  PW2 said he was not sure whose right hand it was (D2’s or the applicant’s) that unbolted the metal door.  Despite such inconsistency, their evidence was accepted by the judge.
(6)	PW2 gave contradictory evidence; in-chief he said he saw the applicant take away the wooden board, take the plastic container and pour the drugs into the toilet, yet in cross-examination, PW2 agreed that he did not actually see the applicant move the white board, take the pink bucket or see him pour the contents of the bucket into the toilet bowl.  PW2 only saw the back of the applicant making a motion with his left hand and assumed from it that the applicant was disposing of the drugs in the bucket.  There is a doubt and the court should not have believed PW2’s evidence.
(7)	PW2 could not have been telling the truth about arm-locking the applicant and seeing what happened through the window opening because that opening was only 6 inches x 6 inches.

Ground 1

61. Admittedly such a matter was brought to the attention of the judge and a complaint made by counsel for the applicant at the trial.

62. That matter was however resolved after the judge conducted an enquiry into the matter as well as PW2 being cross-examined on it by defence counsel and then re-examined by prosecuting counsel.

63. It is quite apparent from the transcript of the evidence that the judge accepted the explanation tendered by prosecuting counsel, an expatriate, that the conversation he had with the Officer in Charge of the case was conducted wholly in English and that in re-examination of PW2, it was the evidence of PW2 that he had not listened to the conversation between the prosecuting counsel and the OC case, and that his standard of English, having failed his Form 5 English, was not of such as would have allowed him to fully understand what was said between prosecuting counsel and the OC case.

64. The judge went on to make a note of this complaint and to view the evidence in its context.

65. It should be noted that the complaint made related to that part of the evidence given by PW2 whether, on the second occasion that D1 re-entered the main room, it was D2 or the applicant who had unlatched the metal door.  In his evidence PW2 said it was the arm of the applicant, but agreed in cross-examination that in his notebook and witness statement, he had written down that it was the arm of “AP2”.  He had explained that what was written by him in his notebook and statement was mistakenly written as he had intended to write “AP3” but had mistakenly written “AP2” instead.

66. This part of the evidence was not taken into account by the judge when deciding the involvement of the applicant in this case, the benefit of the doubt being given to the applicant because of the unsatisfactory state of the evidence.

67. There is therefore no merit in this ground of appeal

Ground 2

68. There is no evidential basis or support for this ground of appeal in the transcript of the evidence showing any hinting of answers by the prosecuting counsel. 

69. If such had transpired at the trial and if the complaint had been raised before the judge, such complaint would have been recorded on the transcript of the court proceedings.  No such complaint is apparent from the transcript.

70. As for changing of evidence, this is dealt with under Ground 6.

Ground 3

71. No rule of law exists that interviews of suspects must be recorded by video to be admissible in evidence.

72. In the present case, an explanation had been tendered to the judge as to why the cautioned interviews of the applicant were not video recorded and, no doubt, accepted by the judge when she ruled the cautioned statements to be admissible in evidence.  That evidence came from the arresting officer of the applicant as well as the senior inspector in charge of the operation.

73. The judge had properly dealt with this aspect of the case in her Reasons for Verdict.

74. In any event, nothing turned on the cautioned statements admitted into evidence, since it was clear from her Reasons for Verdict that the judge did not rely on any of the contents of the cautioned statements in convicting the applicant of the charges, rather it was the evidence of PW1 and PW2 which she accepted and relied on.

75. There is no merit in this ground of appeal.

Grounds 4 and 6

76. The judge had drawn the irresistible inference that the words from a female voice saying “Flush the white powder away” must have been said by D2, the only female in the cage at the time.

77. The judge further drew the irresistible inference that those words must have been said by D2 to the applicant being the only other person in the cage at the time.

78. The judge accepted the evidence of PW1 that when he gained access into the cage, D2 was sitting there with her body slightly bent forward and holding her head in both her hands.  On that evidence, the judge found that it was not D2 who had emptied the drugs from the bucket into the toilet bowl, for if she did, she could easily have flushed away the drugs as well.

79. The judge therefore accepted the evidence of PW2 that after D2 had told the applicant to flush the white powder away, PW2 had seen the back of the applicant from the window opening and in that position had seen some motion by the left hand of the applicant, although PW2 did not actually see the applicant move the white board, take the bucket and pour its contents down the toilet bowl.

80. From all the circumstances, the judge inferred that the applicant was attempting to dispose of the drugs from the bucket by flushing them into the toilet bowl.

81. All the inferences drawn by the judge were irresistible inferences which the judge was fully entitled on the evidence to draw in the circumstances of this case.  In doing so the judge did not err and cannot be faulted.

82. In so far as PW2 changed his evidence when in-chief he said he saw the applicant move the white board, take the bucket and pour its contents into the toilet bowl, that evidence was acknowledged by him during cross-examination not to be as he had stated it in-chief.  His explanation for this change in evidence was that he did not express himself properly when giving that evidence-in-chief for when he saw the motion by the left arm of the applicant, he had believed the applicant to be doing all those things which he said he saw the applicant do in his evidence-in-chief and thought the applicant was trying to dispose of the evidence, namely the drugs, by throwing them into the toilet bowl.

83. The judge dealt with this aspect of PW2’s evidence in her Reasons for Verdict by saying that “there is a clear difference between a deliberate distortion of the events and giving an honest recount of what the witness perceived to be the factual occurrence as a result of his own irresistible inference drawn from the primary evidence he observed.

84. The judge then went on to say that both PW1 and PW2 had been honest about their evidence, impliedly accepting that PW2 was not deliberately distorting the events, even though there was this apparent change in his evidence.

85. That was a conclusion which the judge was well entitled to reach.

86. There is no merit in this ground of appeal.

Ground 5

87. PW1 did deal with D2 when buying the drugs.  It was while PW1 was dealing with D2 purchasing the drugs from her that PW2 was making his observation through the window opening on his right.

88. It is true that PW2 did give evidence that he wasn’t sure whose hand opened the metal door, but that was on the occasion when D1 re-entered the main room after having taken PW1 and PW2 into that main room.  That took place some time after the PW1 bought the drugs from D2.

89. There is no inconsistency between that evidence of PW1 and PW2 since they relate to different matters.

90. There is no merit in this ground of appeal either.

Ground 7

91. The judge found as a fact that the window opening was not as small as 6 inches by 6 inches, but closer to 10 inches by 10 inches, although not as large as one foot by one foot.

92. The judge further found as a fact that anyone on the outside of the cage could look into the window opening to see what was going on in the cage and vice versa.

93. Again there is no merit in this ground of appeal.

Conclusion

94. None of the grounds of appeal put forward by the applicant has caused us to take the view that the judge had been in error in coming to the findings and the conclusions which she had come to in respect of this applicant.

95. We find no merit in any of the grounds of this appeal at all either individually or collectively and leave to appeal against conviction was accordingly refused and the application dismissed.