HKSAR v. LAM YIU KWAN

CACC 66/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 66 OF 2001

(ON APPEAL FROM HCCC NO. 164 of 2000)

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REASONS FOR JUDGMENT

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Woo JA (delivering the reasons for judgment of the Court) :

Introduction

On 9 October 2001, we heard an application for leave to appeal against conviction. The applicant applied for an adjournment on the basis that he had instructed a firm of solicitors to conduct the application for him. This necessitated our requesting a Mr Yip Wai Kuen, a solicitor's clerk, named by the applicant, to come to court to give evidence regarding the alleged instructions. Mr Yip told us that neither he nor his firm had been instructed or put in funds. The applicant did not seek to challenge Mr Yip's evidence. We refused to grant the adjournment sought. We proceeded to hear the substantive application but the applicant refused to make any submissions in support. We dismissed his application and here are the reasons.

2. The applicant was charged with one count of trafficking in a dangerous drug, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence were that on 20 January 2000 at the junction of Changsha Street and Shanghai Street, Mongkok, Kowloon, the applicant, together with LEE Kwok-choi ("Lee"), unlawfully trafficked in a dangerous drug, namely 719.64 grammes of a mixture of containing 354.40 grammes of heroin hydrochloride.

3. Lee, the person named in the particulars, was also charged with the same offence.

4. On 12 January 2001, both the applicant and Lee appeared before Tong J when Lee pleaded guilty whereas the applicant pleaded not guilty. Thereupon, counsel for Lee addressed the Court on mitigation of sentence although the Judge rightly decided to deal with sentence after the completion of the trial of the applicant.

5. On 13 February 2001, at the conclusion of the trial, the jury returned a verdict of guilty against the applicant. On 14 February 2001, the Judge sentenced the applicant to imprisonment for 14 years.

Grounds of appeal

6. In the applicant's notice to seek leave to appeal against conviction, two grounds of appeal were raised:

(1) The trial was not a fair one because one of the prosecution witnesses did not give evidence in court. The applicant was therefore convicted unfairly.

(2) The soft drink can on the teapoy inside Lee's premises was found to carry the fingerprints of Lee and the applicant. Lee had pleaded guilty at the early stage. Yet the prosecution produced the evidence of both sets of fingerprints to the jury. On top of that, the Judge failed to deal with this aspect prudently and failed to discharge the jury. The prosecution should have known that since the applicant's trial had already been severed from Lee's, Lee's fingerprint should not been submitted to the court.

7. In order to put the grounds of appeal in context, it is necessary to state briefly the prosecution case and the defence case.

The prosecution case

8. The key witness for the prosecution was PW1, DPC 50492. At around 4.30 pm on 20 January 2000, he was at Shanghai Street near Changsha Street. He saw a man, later known to be Lee, coming out from the main entrance of the building at 466 Shanghai Street. Lee was holding a brown paper bag and a white plastic bag. Then a taxi came from Portland Street and Lee got on board. The applicant and Lee were both sitting in the rear seat. When the police stopped the taxi, Lee tried to escape but was later subdued. The two bags that were originally carried by Lee were on the floor in the rear seat. PW1 asked the applicant to come out of the taxi, and he was taken to a shop called Choi Kee. Lee was also taken there.

9. Inside Choi Kee, PC 48998 searched the two bags in the presence of both Lee and the applicant. PW1 suspected that the white powder found inside the brown paper bag was heroin, so he declared arrest on the applicant for trafficking in dangerous drugs. PW1 cautioned the applicant on his right of silence, and the applicant responded by saying words to the effect that, "Ah Sir, I just bring him along to deliver goods to others", while pointing at Lee. When PW1 asked what the applicant meant by delivering goods and what sort of goods he was talking about, the applicant replied: "Ah Sir, you have already found the bag of white powder in the taxi, what is the point for me to say anything further?" PW1 then handcuffed the applicant and reported the matter to the Sergeant.

10. The police party then took the applicant and Lee to a unit on the 9th floor of 466 Shanghai Street to conduct a search, as keys had been found on Lee. After search, PC 48998 made a report to the Sergeant that some drug-related paraphernalia were found. PW1 then cautioned the applicant again. The reply from the applicant was: "Ah Sir, I have nothing to do with the items found inside the room today." When asked by PW1 what he meant, the applicant said: "Ah Sir, it is right that I often come to this room, but it was Ah Choi who was responsible for packaging the white powder." PW1 reported what the applicant said to the Sergeant.

11. After waiting at the flat for the arrival of other team members for further investigation, the police party and the applicant left the premises some time after 6.40 pm. The applicant was taken to the Mongkok Police Station, arriving at about 7.05 pm. PW1 handed the applicant to the duty officer for temporary detention. After about an hour, PW1 took the applicant to a room on the 1st floor for further enquires. He first explained to the applicant the contents of the notice to persons in custody, item by item. He filled in the details and then he and the applicant signed on the document. After that, PW1 allowed the applicant to eat his meal. In the meantime, a barrister Mr Chan and a solicitor's clerk Mr Yip came to see the applicant. They met with the applicant in the same room. PW1 went outside to keep guard. After the lawyer and the clerk left the room, PW1 returned to the room. The applicant did not say anything to him and just resumed eating his meal. After that, PW1 started to take a post-recorded statement from the applicant. The recording started at 9.10 pm and finished at 10.05 pm. The accused signed after writing the declaration at the end of the statement. Two hours later, PW1 conducted a video interview with the applicant. Before that, the applicant had gone to the toilet, taken a rest and had been given a hot tea.

12. The video interview lasted for about half an hour.

The defence case

13. The applicant gave evidence at the trial. He talked about his family background and related to the court the events on 20 January 2000. He boarded a taxi at Dundas Street, telling the taxi driver to take him to Tsimshatsui as he had arranged to see a friend at Miramar Hotel at 5 pm. On the taxi, he made a phone call to Lee, a friend of his. He asked Lee how he was and whether he was available for tea. Lee said that he was not available as he had something to do and he would call him back later. When the taxi was turning into Portland Street, suddenly Lee said on the phone that he wanted to go to Jordan Road, and asked if it was convenient for the applicant to give him a lift. The applicant agreed. So the applicant asked the taxi driver to stop at Changsha Street to pick up Lee. There was how and why Lee boarded the taxi at Changsha Street; it was entirely accidental.

14. After picking up Lee and when the taxi was just starting to move, police officers rushed up. One or two officers rushed to his side. One of them was a fat officer who wore spectacles. After the police had declared identity, the applicant saw Lee suddenly push open the taxi door, rush out and struggle with the police. Lee was subdued later. The applicant was very surprised as he did not know what was happening. He simply sat inside the taxi during the time. Then the fat officer opened the taxi door and shouted to him, ordering him to come out. At first, the applicant ignored the officer, but the officer dragged him out by pulling his hair. He was taken to the shop Choi Kee. Lee was already there inside Choi Kee. The applicant was asked by the fat officer to squat down. Inside the shop, the applicant was not arrested nor cautioned by any police officer. He made no confession as alleged by the police. Afterwards he was taken to the flat on the 9th floor of a building across the street.

15. The applicant testified that the fat officer was all along the fat officer, not PW1, who was with him inside the premises. He saw Lee being hit by the police in the flat, and he later felt unwell.

16. At one stage Inspector Wong came with other officers and took the applicant to the staircase outside the premises. The applicant remembered that the officers were Benny, Ah Ben and Ah Cheung. There, the applicant was asked to supply drug information, and was told that if he could do so he would be released. The applicant said that he kept saying that it had nothing to do with him. He was then taken back to sit in the corridor and was guarded by the fat officer. There the applicant told the fat officer that he would like to instruct a lawyer.

17. The officer took instructions and when he returned he allowed the applicant to make a phone call on a police mobile phone. Although the applicant had a mobile phone himself, he was not allowed to use it. The applicant telephoned to his girlfriend, Ah Kat, and told her to get a lawyer for him. After the phone call, PW1 came to his side. PW1 asked him if he was thirsty, and offered to him a grey/green can of soft drink. He told the court that it was Sprite and he actually drank it. When the applicant was shown later the two cans in court, he said that he had made a mistake because of the colour, and he was given, in fact, a Cream Soda. After drinking it, he just put the can on the floor.

18. The applicant denied that he was ever cautioned in the flat, nor was he shown any item that was found inside the room. He said that he had not made any admissions there. Later he was taken to the Mongkok Police Station.

19. After seeing the lawyer, he specifically told PW1 that he was not willing to give any statement. He also told PW1 that he was not feeling well and wanted to see a doctor, or to be taken to a methadone clinic. PW1 scolded him. The applicant said that he felt so bad that he even vomited.

20. Then PW1 provided him with drugs to consume. After the applicant had finished smoking the drugs, PW1 took out the notice to persons in custody, and a notebook for him to sign and to write the declaration. The applicant followed the instructions because he trusted PW1 due to the supply of drugs, but he said he was not aware of the contents of both documents.

21. PW1 then asked the applicant to have a video interview. He first refused, but PW1 told him that since no drug was found on him, it was not going to do him real harm. Then the applicant lay down on the bench to rest while PW1 started to write. Subsequently, PW1 woke him up and rehearsed the interview with him. After the rehearsal, the applicant said that he sensed something was wrong, as the answers would amount to a confession to trafficking in dangerous drugs with Lee. He argued with PW1 about that. But PW1 said that the applicant had no choice, and that it was a deal. PW1 also said that if he was willing to participate he would ask his boss to give bail to him. The applicant then agreed to do so. That was what had taken place before the video interview.

22. When the applicant was taken inside the interview room, PW1 did not caution him or inform him of his right as a suspect. He was not reminded that he might be charged for any offence. The applicant said that at the interview he just followed instructions. He was scared and he lowered his headed. He said that he was reciting the answers as taught by PW1. The mitigation at the end of the interview was also the idea of PW1. The applicant denied having any knowledge about the drugs carried by Lee, and he was not delivering the drugs together with Lee. He insisted that he had never gone up to the flat in which the can of soft drink was found bearing his fingerprints.

Ground (1)

23. Ground (1) of appeal complains that the taxi driver was not called by the prosecution to give evidence at the trial. The Judge dealt with this aspect of the case in his summing-up, as follows:

"Defence counsel also raised the point about the taxi driver being absent as a witness. It appeared that this witness had left Hong Kong in May last year without telling the police. Defence counsel said he would be an important witness and she listed out a number of things she could have asked him if he was called to testify. Members of the jury, you may wish to consider whether the police had deliberately deprived the defence the opportunity to question this witness. If this is the case, you may consider how it would affect the police officers' integrity and credibility.

However, if the taxi driver had chosen to leave Hong Kong without informing the police, you may think that while one could criticise the police for not keeping regular contact with all their witnesses, there appears to be little the police can do. You will have to decide on the case based on the evidence before you and you should not speculate on what the text driver might have said if he had testified."

24. These directions given by the Judge to the jury are, in our view, appropriate, proper and most sensible in the circumstances. We do not see any unfairness being caused to the applicant. Indeed, the most important evidence against the applicant was his own admissions made under caution to the police upon his arrest and thereafter. These admissions, which were denied by the applicant as ever having been made, were according to PW1 made in Choi Kee, in the flat and at the police station. Nothing that happened upon the interception of the taxi by the police officers could have any significant bearing on whether the jury should accept, which they obviously did, that the admissions made by the applicant had in fact been made, and that the contents of such admissions were true and reliable. This will be further dealt with later. Ground (1) fails.

Ground (2)

25. Regarding ground (2), the complaint is that the fingerprints of Lee and those of the applicant on the soft drink can found in Lee's flat were shown to the jury and that the Judge had failed to deal with this aspect prudently or to discharge the jury. This ground is plainly misconceived. While it is true that Lee had pleaded guilty first, leaving the applicant to face trial alone and that the indictment was amended so that the applicant was charged alone, the particulars of the offence against the applicant were that he, together with Lee, trafficked in the dangerous drug. It is plain from the particulars of the offence that the applicant was charged with jointly trafficking in the dangerous drug with Lee. The prosecution case and evidence regarding Lee must be relevant, forming a part of the case against the applicant. There is nothing wrong to present to the jury the fingerprint evidence concerning both the applicant and Lee on the soft drink can that was found in Lee's premises. There was no justification to ask the Judge to discharge the jury, when both sets of fingerprints were shown to the jury. Nor is there any merit in the argument that these fingerprints should not have been shown to the jury.

26. The Judge also dealt with the applicant's case on the fingerprint in a very fair manner, as follows:

"Members of the jury, what the accused was suggesting was that his fingerprint could have been left on the can which might have been put inside the room by the police. If you accept that is the case, then you should consider how it affects the credibility of the police who have denied such an incident. Even if you accept the evidence of the police that no can of drink was supplied to the accused, as he had alleged, the presence of the can with the accused's fingerprint on it in the room does not necessarily mean that the accused was involved in the present crime. There might be other reasons why the can was there."

The confessions

27. Indeed, the main evidence against the applicant was his admissions in the cautioned statements. This was clearly and succinctly dealt with by the Judge in his summing up:

"Now, defence counsel has given you a careful analysis of the evidence. She pointed out, rightly, that the prosecution case turned on the reliability of the confessions....

She had summarized the defence position as follows. That the confessions were not true, not genuine ones, not reliable and not taken in the circumstances as PW1 had alleged. And no weight could be attached to them. The accused had no knowledge about the drugs and he was not in possession of them. He was not in a joint venture with Lee Kwok-choi to traffic the drugs. Members of the jury, you should consider these matters carefully. If you find what the defence counsel said had caused you to have a reasonable doubt on the prosecution case you should acquit the accused of the charge."

28. The Judge also drew the attention of the jury to the parties' cases and evidence on the confessions. By returning a verdict of guilty, the jury were obviously satisfied beyond a reasonable doubt that the applicant had made the confessions in the circumstances as described by PW1 and that the confessions were true and reliable.

Conclusion

29. Neither of the grounds of appeal has any merit. We have examined the summing-up of the Judge very carefully, and found it fair and well balanced. We are not able to find any error of law in it or indeed, anything in it that may cause us to doubt that the conviction is other than safe and satisfactory. The application for leave against conviction must be dismissed.

Postscript

30. As alluded to in the first paragraph of these reasons, the application for adjournment made by the applicant at the commencement of the hearing turned out to be based on a lie told by him to this Court, which was contradicted by the evidence of Mr Yip. The time of the Court was wasted, only to find out that the ground raised in support of the application to adjourn the hearing was untruthful, not to mention that it had also caused inconvenience to Mr Yip, having to come to court to give evidence. Such conduct on the part of the applicant should not be countenanced. This Court considers that in future it may well use its powers under section 83W of the Criminal Procedure Ordinance, Cap 221 to order a loss of time when a similar situation arises.