R. v. WONG MING YAU

IN THE COURT OF APPEAL

1994, No. 487
(Criminal)

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J U D G M E N T

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Saied, J.:

1. We refused leave to appeal on 31st May, 1995 and now give our reasons.

2. The applicant sought leave to appeal from his conviction in the District Court for the offence of possession of a dangerous drug, namely, a mixture weighing 42.30 grammes containing 18.02 grammes of salts of esters of morphine contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, CAP. 134.

3. The Crown case briefly was that the applicant was seen and observed by two police constables (PW1 and PW2) of the Special Duty Squad of Yau Tsim on 1st January, 1993 at 11.30 p.m. in Jordan Road walking to and from Chi Wo Street and checking his watch. He was stopped and told by PW1 that he would search him on suspicion that he was in possession of dangerous drugs, whereupon the applicant is alleged to have said, "Please do it quickly. I am in a hurry." In the search that followed PW1 found two packets of Marlboro cigarettes in the applicant's right hand jacket pocket, each having two polythene bags with some white powder in it. Upon being asked what that was, the applicant is alleged to have said, "Ah Sir. It is white powder." When asked where he got it from, the applicant allegedly said, "I have just bought them from a friend." PW1 then arrested him for the afore-mentioned offence and cautioned him, in answer to which he is alleged to have said, "Ah Sir. Give me a chance. The white powder is for my own consumption." He was handcuffed and, after a search of his car in a nearby street, taken to Yaumati Police Station at 12.05 a.m. At 12.13 a.m. he was taken for his house search and upon their return to the police station PW1 took him to Room 13 at 1.45 a.m. where he took a record of interview from him, finishing at 3.10 a.m.

4. Voluntariness of the record of interview was challenged at the trial on the basis of assault on the applicant's chest, his back and face and of being forced to swallow a fifty cents coin and threats that he would have to swallow more coins if he did not sign the record of interview. The learned trial judge proceeded to deal with the issue of admissibility by what is commonly known as the "alternative procedure". PW1, PW2 and another constable PW3, to whom those allegations were put and were denied by him, gave evidence at the end of which, after the defence submission of no case on the special issue had been rejected, the applicant elected not to give or call any evidence other than to put in with the agreement of the Crown a medical report which indicated that he had been seen by a doctor at 7.12 a.m. on the 2nd January, 1993 at the Princess Margaret Hospital after he had been released by the police on bail. The report noted complaints of the applicant of pain over his back and face and discomfort over his chest. The doctor recorded finding tenderness over those areas and an X-ray revealed an object compatible with a coin in his lower oesophagus and a later X-ray showed the object further down in his intestinal system. The trial judge gave a brief ruling stating that he did not intend to give full reasons and said:

"All I need to say at this stage is that there are certain aspects of the evidence that I have heard that cause concern. These concerns are such that I am not entirely satisfied that the statement was obtained precisely in the manner that the Crown allege. Now, this does not necessarily imply that the Crown have failed to prove voluntariness. The inconsistency may be of such a minor nature that I could nevertheless still say that I was satisfied that the statement was voluntary. But the concerns raised by the evidence here are such that they do leave a reasonable doubt in my mind. I must therefore rule that Exhibit P2 is inadmissible."

5. He was to explain what those concerns were later in his Reasons for Verdict. We think it advisable to cite that part of the Reasons that deals with those concerns. He said,

"What did cause me concern was the evidence of PW3. He is part of the same squad as PW1 and PW2 but took no part in the arrest of the defendant. He was though present when the defendant's house was searched. He said he was not present when the statement was taken and denied any assault on the defendant or forcing him to swallow the coin. But it was his notebook (Exhibit D4) that caused the concern. There is an entry timed at 2345 on 1/1/93 which deals with the arrest of the defendant. That entry refers to the weight (66 grammes) and value ($19,800) of the drugs found whereas these figures could not have been established until after the drugs had been weighed at the police station after their arrival there at 12.05 a.m. on 2nd January 1993. Now it may be that the time noted 2345 may be the time the event occurred rather than the time the note was made. But PW3's evidence was that the entry was made at the time stated and in the street. He further said that PW1 had told him at the scene of the arrest about the weight and value of the drugs. On the following two pages (39, 40) there are a number of alterations to both the text and the times. I did not find PW3's explanation convincing."

6. The trial judge then went on to deal with the defence criticism of PW2's notebook, Ex. D3, which had an entry at 12.05 a.m. on 2nd January, 1993, the first sentence of which referred to the weight and value of the drugs. The entry being two pages long, he said that it would have taken some time to write and by the time the first sentence dealing with the weight and value of the drugs was written the time would be "significantly later than 12.05 a.m." PW2's evidence was that the drugs had been weighed by the Duty Officer when the applicant arrived at the police station at about 12.05 a.m. and PW1 had got that information from a document he referred as POL.159 which was apparently timed 12.35 a.m. The trial judge continued:

"Thus even though PW2's notebook entry was timed at 12.05 a.m. the part referring to the weight and value could well have been made at or after 12.35 a.m. In short I accepted PW2's evidence on the position even though he did not always express himself very happily."

7. About PW1 the trial judge said that this witness was not always as clear as he might have been in dealing with entries in his notebook and other documents but like PW2 he "accepted he was giving an honest account." He concluded his reasons for ruling the record of interview inadmissible with these words:

"But I felt that in view of the difficulties in PW3's evidence I had to rule the statement inadmissible. I realise of course that I am able to reject one witness's evidence whilst accepting another's but I felt in all the circumstances the safest course was to rule the statement inadmissible."

8. To Mr. Grounds (for the applicant) it appeared that the evidence of PW3 was much more relevant and important to the general issue than it was to admissibility of the record of interview. This was to form the bed-rock of his main submission that, since PW3 contradicted the other two constables on the general issue, the credibility of PW1 and PW2 was brought into doubt so that, if the trial judge could not find proof beyond reasonable doubt that the record of interview was voluntary and had placed no weight on the medical evidence, there must also be doubt on the general issue. He argued that in adopting the "safest course" in ruling the record of interview inadmissible the trial judge had adopted the attitude particularly when he had not specifically rejected the testimony of PW3 that all three prosecution witness had been consistent and on that basis the statement must have been voluntary.

9. We disagree and are of the view that this submission did not give due consideration to the trial judge's expressions of concern about the evidence of PW3 as well as to his clear pronouncement that he did not find this witness's explanation concerning his notebook entry convincing and that it was because of the difficulties in his evidence that he had ruled out the record of interview. As was pointed out by Bokhary J.A. during argument, that witness was unsatisfactory and there was something odd about his notebook which was the reason why the trial judge took the course that he did, that is, the safest course: in case PW3, whom the judge did not trust, had done or said something on his own which might adversely affect the voluntariness of the statement. It is clear from the evidence that PW3 was not present with the other two constables at the time of the arrest of the applicant. What was odd about his testimony was that he maintained that the information contained in his notebook had been given to him by PW1 on the street. And yet PW1 himself was only to get to know about the weight and value of the drugs that had been seized upon arrival at the police station after the Duty Officer had weighed them and POL.159 completed. The trial judge was in a better position than us, having seen and heard the witnesses, to assess the important issue of the credibility of those witnesses. Having considered the difficulties in and concerns caused by the testimony of PW3 he found his explanation unconvicing. In the context in which that finding was made it is quite clear that the trial judge had appreciated that he could reject the evidence of one witness and accept that of another but in so far as the voluntariness issue was concerned the difficulties in the evidence of that witness had caused him such concerns that he had taken the safest course. This read in isolation is likely to be misunderstood in that it might give the impression that the evidence of PW3 went unscathed. Reading it with his earlier finding rejecting PW3's explanation as unconvincing puts the issue beyond peradventure and we are satisfied that the trial judge had arrived at that conclusion after a very careful and fair consideration of the evidence.

10. That had left the evidence of PW1 and PW2 about whom the trial judge was satisfied that both had given a "truthful and accurate account" of the finding of the drugs on the applicant. It must be emphasised that these were the police constables who arrested, searched and found the drugs in question and in so far as the discredited officer, PW3, was concerned he was merely told about what PW1 had come to learn of the weight and value of the drugs from POL.159. In our judgment his testimony could in no form or manner detract from the eye-witness account of the other two witnesses whom the trial judge found had given a truthful and accurate account of the finding of the drugs on the applicant.

11. We saw no merit in this application for leave to appeal and for these reasons dismissed it.