HKSAR v. WONG CHOR CHOW

CACC 533/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2004

(ON APPEAL FROM DCCC 805 OF 2004 )

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the Court):

1.  On 9 December 2004, the Applicant was convicted after trial by Deputy Judge W.C. Li in the District Court of one count of trafficking in dangerous drugs, namely, 41.73 grammes of a mixture containing 23.42 grammes of heroin hydrochloride.  On the same day, he was sentenced to a term of imprisonment of 6 years. 

2.  The Applicant has applied for leave to appeal against both conviction   and sentence. 

Prosecution case

3.  The prosecution case was that on 26 May 2004,  police officers PW1 and PW2 were briefed to conduct observations at Shanghai Street near the junction of Changsha Street.  They saw the Applicant who answered the description given at the briefing.  They observed him for a short while before moving in to intercept him.  After revealing their identities, they searched him and found a plastic bag, inside which were two smaller plastic bags containing the dangerous drugs.  PW1 arrested the Applicant and cautioned him.

4.  The Applicant admitted under caution that he was unemployed and was ‘dragging’ things for others in order to earn some money.  This was recorded by PW1 in his notebook, to which the Applicant expressed his agreement in writing and affixed his signature.  This was later verified in a post-record statement which the Applicant also signed.

5.  The Applicant was then interviewed at a police station, which interview was recorded on video.  The interview was conducted by two police officers, neither of whom was PW1 or PW2.  One of the interviewing officers was PW3 Sergeant 23867 ("the sergeant").  In this interview, the Applicant admitted that he was delivering things –   which he believed to be dangerous drugs – for reward.   

Defence case

6.  At the trial, the Applicant testified that at the material time, he was about to buy dangerous drugs from a dealer.  When PW1 and PW2 approached, the trafficker fled dropping the dangerous drugs onto the ground. 

7.  The Applicant denied that his admissions were voluntary or true.  He said he was suffering drug withdrawal symptoms and was anxious to see his handicapped son.  He said he had been coached by the sergeant on what to say.

Verdict

8.  The judge accepted PW1 and PW2’s evidence that the Applicant was by himself before they intercepted him and that they found the dangerous drugs on his person and not on the ground.  After a voir dire, the judge found that the Applicant had given his confessions voluntarily.

Grounds of appeal against conviction

9.  In his original grounds of appeal against conviction, the Applicant argued that the judge should not have found that the confessions were voluntary.

10.  Subsequently however at a hearing before a single judge (Woo V-P) on 11 April 2006, the Applicant put forward two new grounds of appeal:- (1) that a vinyl  panel surrounding the dock at Court 34 (where his trial was held) had prevented him from hearing the evidence  clearly, such that he was not able to give instructions to his lawyer to challenge the prosecution evidence promptly; and (2) that the sergeant was subject to disciplinary proceedings because of connections between him and a drug trafficker Ho Kwok Fai, who the Applicant says, was the trafficker from whom he was buying drugs before he was intercepted by PW1 and PW2.  The Applicant says he therefore had reason to believe that the sergeant might have influenced PW1 and PW2 into giving false evidence.

Discussion

11.  We do not consider that there is anything in these grounds.  As far as the original ground of appeal is concerned, the judge had accepted the voluntariness of the Applicant’s confessions.  In regard to the Applicant’s allegations that he had been suffering from drug withdrawal symptoms and had been anxious to see his son, the judge had observed from viewing the video recording that the Applicant had appeared to be in a fit state, and was calm and composed.  He spoke coherently and was cautious in answering questions.  As for the Applicant’s allegation that he had been coached, the judge observed that the Applicant had answered the questions with care and that the statement was not entirely inculpatory (paras. 12-13).

12.  As for the ground that the vinyl  panel surrounding the dock had made it difficult for him to hear the evidence, the short answer lies in the Applicant’s own affirmation filed on 12 April 2006.  Although there was an earlier allegation that his lawyer had advised him not to complain allegedly so as not to affect the judge’s perception of him, on the Applicant’s own evidence what then happened was that

"when the court resumed, my lawyer told the prosecution that I could not hear the evidence clearly.  The prosecuting counsel asked the witness to raise his voice, The trial proceeded in the normal way until the end".

That belies the Applicant’s allegation that he had been advised by his lawyer not to complain about the difficulty in hearing.  In any event, there was no reason why the judge’s perception of him would be affected simply by a complaint about difficulty in hearing.  So there is nothing in this ground either.

13.  Finally, as far as the sergeant was concerned, investigations undertaken by the Department of Justice have revealed that the Applicant’s arrest was based on information from another informer, not the one involved with the sergeant, and that the sergeant was not this informer’s handler.  In any event, there is no evidence that the  evidence of PW1 and PW2 was in any way affected by anyone.

14.  As a matter of completeness, we would also mention that in his affirmation, the Applicant also complained that the police had not raided his former home where they would have found drug injection paraphernalia that would have supported his evidence that he was buying drugs at the time of arrest, but only went to his new home.  It is clear from the judgment that this was not a point he had taken below.  Instead his case below was that he confessed because he was anxious to deal with the decoration of his new home, and the police officers knew that (paras. 8-9).    

Order

15.  In the circumstances, there is nothing in any of the grounds of appeal against conviction, and the Applicant’s application is dismissed.

Grounds of appeal against sentence

16.  As for the Applicant’s appeal against sentence, he argued that the judge had failed to take into account mitigating factors such as his son’s condition and his own health. 

17.  The sentence imposed by the judge was consistent with the guidelines in R v Lau Tak-ming [1990] 2 HKLR 370.  As far as his son’s condition is concerned, this court has said time and again that where a defendant is engaged on a deliberate course of conduct such as trafficking in dangerous drugs, he cannot pray in aid unfortunate family circumstances in mitigation (HKSAR v Wong Cheuk Lam CACC 280/2001, unrep.  11 January 2002).  Nor is the defendant’s own ill-health, whether or not caused by the offence, a ground for reducing sentence (Yip Kai Foon v HKSAR [2000] 3 HKCFAR 31).

Order

18.  In the circumstances, there is nothing in the grounds of appeal against sentence either and the Applicant’s application is dismissed.