HKSAR v. CHIU KIN SHING

CACC 96/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2012

(ON APPEAL FROM HCCC NOS. 267 OF 2011 & HCCC 3/2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the Reasons for Judgment of the court):

Introduction

1.  On 22 February 2012 the applicant was convicted after trial before Deputy High Court Judge Toh (as she then was) of the offence of trafficking in a dangerous drug namely 1,258.05 grammes of a mixture and solid containing 1,054.38 grammes of heroin hydrochloride.  He was sentenced on the same day to 21 years’ imprisonment.

2.  The applicant then filed an application for leave to appeal against his conviction only.  At the hearing of his application we dismissed it and said we would give our reasons for so doing at a later time.  This we now do.

The Trial

3.  The applicant was tried with another defendant on an indictment that contained two counts.  The applicant was charged only with the first count and his co-accused only with the second count.  The two counts refer to drugs found in a flat which was being used as a drug packaging centre.  The first count referred to the total quantity of drugs found in the flat.  The second count referred to part only of the drugs in the first count, being two separate packages of drugs wrapped in birthday wrapping paper and which bore the 2^nd defendant’s fingerprint and palm print.  The 2^nd defendant testified at his trial and gave an explanation for the presence of his prints on the packages.  He was acquitted and the applicant, who did not give evidence, was convicted.

The prosecution case

4.  The prosecution case against the applicant was that he was the tenant of a flat which was being used as a drug packaging centre.  The applicant had signed a tenancy agreement for the flat for the period 1 December 2010 to 30 November 2012.  Prior to doing so he had inspected the premises.  Upon signing the tenancy agreement the applicant paid the rental deposit to the landlord and the commission to the property agent.

5.  On the date of the offence, namely 8 February 2011, the flat was being kept under observation by a party of police officers.  The prosecution alleged that the applicant was intercepted by the police officers as he was leaving the flat.

6.  He was searched and on his person was found a bunch of keys two of which were for the front door of this flat.  Nothing further of any significance was found from the search of his person.  The police party, together with the applicant, then proceeded to the flat and gained entry to it by using the keys found on the applicant.

7.  Inside the flat the police found the dangerous drugs the subject of the charges, which had a street value of $983,795.  Also in the flat were a number of items that could be used in the packaging of drugs, such as a tape dispenser, hammer, scissors, spoon, cutter and an electronic scale.  Noteworthy was the condition of the flat.  It contained a minimum of furniture and the drugs and packaging paraphernalia were on open display.  Clearly the flat was not being used for residential purposes and whoever was making use of the flat was doing so for the purpose of packaging drugs for subsequent distribution.  The only issue at trial was who was using the flat for this purpose.  The prosecution maintained it was the applicant and the applicant denied it was he.

8.  At the time of his arrest at the flat the applicant was alleged to have said: “Ah Sir, I help others to deliver dangerous drugs just to make a small profit.”

9.  Subsequently two video records of interview were conducted with him.  In his first record of interview he confirmed the oral admission made by him at the time of his arrest, but then went on to make a mixed statement.  He explained how he was offered $1,000 to $2,000 by a person named Hung Chai to rent the flat.  He had met Hung Chai in a cyber café.  He said he agreed to this proposal but never lived in the flat himself and did not return there unless asked to do so by Hung Chai.  He provided explanations to account for the evidence linking him to the scissors, the cutter, the spoon and the tape dispenser and for his presence in the flat.

10.  In his second video interview he elaborated on how he became the tenant of the flat and explained his possession of a K touch phone and the keys to the flat.

11.  What then was the evidence that linked the applicant to use of the flat?  Essentially it was:

(i) the fact that the applicant was the legal tenant of the flat;

(ii) the fact that the applicant was in possession of keys to the flat;

(iii) the fact that the applicant was intercepted as he was exiting the flat;

(iv) the presence of the applicant’s fingerprints on: (a) a plastic box which contained the drugs; and (b) the side of the tape dispenser;

(v) DNA evidence which linked the applicant to the handle of the hammer, the scissors, the plastic spoon, the cutter and the electronic scale;

(vi) the admission made by the applicant at the scene; and

(vii) the admissions made by the applicant in his video record of interview.

The defence case

12.  The oral admission at the time of his arrest and his two video interviews were challenged on a voir dire.  The admission at the scene and the video records of interview were found to be voluntary and were admitted into evidence.  The post-record of the admission at the scene was excluded by the judge in the exercise of her residual discretion to ensure a fair trial for the applicant.

13.  The applicant did not testify on the voir dire or at his trial. At the voir dire he called both his mother and father but at his trial he called only his mother as a defence witness.  Her evidence related to the existence of a hole in his jeans allegedly caused as a result of police violence.

14.  The defence case on the voir dire was repeated at trial.  As put in cross-examination of the main prosecution witness, it was that the applicant did not make the admission at the time of his arrest and that he only made the admissions in his video interviews because he was forced to do so after beating, threats and coercion; that there had been a video interview prior to those adduced by the prosecution which was aborted because the applicant was not cooperating.

15.  In order to show that PW1 was not a reliable witness the defence relied upon his denial, which was said to be unbelievable, that he had not altered the times on the Notice to Persons Under Investigation by, or Detained in the Custody of, the Police.  This form is known as a Pol 153 and informs the person to whom it is given of his rights in accordance with the Secretary for Security’s Rules and Directions for the Questioning of Suspects and the Taking of Statements.  There were two times listed on this form as completed by PW1. The first time was the time the form was given to the applicant and it was said that the time of this had been changed from 1309 hours to 1509 hours by writing over the 3 to make it appears as a 5.  The second time was the time the applicant signed on the form and it was said that this had been changed from 1310 to 1518 by again overwriting the 3 and changing the 0 to an 8.

16.  The second matter used to attack the credibility of PW1 was the presence of the numbers “1749” on a piece of paper which PW1 admitted he had written and used as an aide memoire during the video interviews.

17.  The defence case also was that the applicant was not intercepted as he was exiting the flat but rather was on the staircase of the building and it was suggested by defence counsel that the fact that the police failed to take the applicant’s fingernail cuttings supported his claim that he was not coming out of the flat.

18.  The defence case in terms of the answers given by the applicant in his records of interview was that he had rented the flat on behalf of a friend and had no idea for what purpose his friend was using the flat.  The applicant had previously gone to the flat but no drugs were present there on those occasions. These visits by the applicant explained how his fingerprints and DNA came to be on certain items in the flat.

The Grounds of Appeal

19.  In his Perfected Grounds of Appeal the applicant makes five complaints.

20.  The first complaint is that the judge erred in not ruling inadmissible the alleged verbal admission of the applicant and his two video interviews once she had concluded that she could not rely on PW1’s evidence in respect of the times on the Pol 153.

21.  The second complaint is that the judge failed to fairly present the defence case resulting in an unbalanced summing-up.

22.  The third complaint is that the judge failed to properly sum up on the alteration of times on the Pol 153 and the presence of the numbers “1749” on the documents prepared by PW1.

23.  The fourth complaint is that the judge misdescribed certain evidence as Admitted Facts.

24.  The final complaint is that the judge wrongly directed the jury that the failure of the applicant to testify meant that there was “no evidence from [the applicant] to undermine, contradict or explain away the evidence of the prosecution” as there were the evidence of the Pol 153, the numbers on the document written by PW1 and the exculpatory statements by the applicant in his video interviews.

Discussion

25.  The first ground of appeal focuses upon the judge’s reasons for her rulings on the voir dire.  It was the defence case that the applicant had been subjected to threats and violence from the time of his arrest and even though the verbal admission was denied, had it taken place it was tainted by involuntariness. In respect of the post-record, the defence case was that it was not read over to the applicant, he was not allowed to read it and it did not contain the required certificate at the end of it by which the suspect confirms having read the post-record and its accuracy.

26.  The judge found that the video interviews and the oral admission at the time of arrest were all voluntary.  In making this finding she said that she totally accepted all the prosecution witnesses, other than PW1, fully, concluding that they gave truthful and reliable evidence.  She could not reach the same unqualified acceptance of PW1 as she saw the force in defence counsel’s submission that PW1’s evidence in respect of the times on the Pol 153 was not credible.  She also accepted that there was a failure to include in the post-record the required certificate.

27.  This led the judge to consider two things.  The first was whether, in order to ensure that the applicant received a fair trial, she should exercise her residual discretion to exclude the post-record of the oral admission that the applicant made at the time of his arrest notwithstanding that she was satisfied the oral admission itself was voluntary.  As the judge noted in her ruling the certificate performs the important role of ensuring “that a particular defendant or suspect knows his rights as relating to the post-record”. Of course once a suspect’s signature is appended to the post-record then it evidences the fact that his right to amend or alter the post-record was made known to him and is confirmation by him of its accuracy.  Given these failings of procedure and given the question mark that hung over the head of PW1 it is not surprising that the judge exercised her discretion and excluded the post-record of the verbal admission, but not the verbal admission itself, in order to ensure a fair trial for the applicant.

28.  The second thing the judge considered was what impact her rejection of PW1’s evidence in relation to the Pol 153 had on her overall assessment of his credibility and in this respect she concluded that she should look at whether there was other evidence to support PW1’s testimony.  This was a perfectly sensible and proper course for her to adopt and accords with a prudent and commonsense approach to the evidence of PW1.  She found support in the evidence of the other prosecution witnesses and it was because of this support that she was able to reject the assertions that the two records of interview were not voluntary.  Her rejection of the defence allegations is hardly surprising given that, as the judge herself noted, the applicant did not testify on the voir dire and so there was no evidence from him to support the allegations put to the prosecution witnesses and denied by them.  Furthermore the visual evidence of the video records of interview told heavily against the applicant as it showed, in the words of the judge, the applicant “answering spontaneously and not under any form of duress or improper pressure”.

29.  The defence case on the voir dire consisted only of the evidence of the applicant’s mother and father but the judge concluded that the mother’s evidence, which related to a hole in a pair of jeans allegedly worn by the applicant at the time of arrest, was neutral.  The father claimed that the applicant had complained of police brutality to him when the applicant was brought home to observe a police search of his residence.  But this was contrary to the defence case which was that the applicant had been threatened prior to going to his parent’s house and this was why he had not made any complaint to his father during this search when he in fact had the opportunity to do so.

30.  We can find no error by the judge in the approach she took to the evidence and the way she resolved the issue of PW1’s credibility.  She was clearly well aware of the doubts surrounding his credibility and she addressed the question of what impact those doubts might have in respect of her reliance on his evidence.  We are not persuaded that her ruling on the voir dire contains any fault in her reasoning or failure of analysis.

31.  As to the adequacy of her ruling, far from being inadequate as asserted, we are of the view that it is focused on the issues and dealt with those issues in as much detail as the circumstances of the case warranted.  In the language of Stock VP on HKSAR v Okafor [2012] 1 HKLRD 1041 at 1055, paragraph 31, the judge’s reasons were “sufficient for the particular purpose”, being the purpose of providing the parties with an intelligible understanding of why the judge ruled as she did and a basis for meaningful appellate review of the correctness of the ruling.

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

33.  The second ground of appeal complains that the judge failed to fairly sum up the defence case.  The applicant submits that this is evident simply from comparing the amount of time which the judge spent in describing the prosecution case, which, it is said, is represented by 11 pages of transcript, with the amount of time which the judge spent in describing the defence case, which, it is said, is represented by only slightly more than 12 lines of transcript.

34.  That there was a stark contrast in the times the judge spent on discussing the two cases is hardly surprising as the vast majority of the evidence before the jury was evidence adduced by the prosecution.  The applicant did not testify and the only witness he called was his mother whose evidence related to the quite narrow issue of the jeans he was wearing on the day of his arrest and the presence of a hole in the upper right thigh of this piece of clothing.  Apart from this testimony the applicant placed no other evidence before the jury.  Consequently, the only other source of evidence relating to the defence case came from the cross-examination by the applicant’s counsel of prosecution witnesses and of exculpatory parts of the two video records of interview.

35.  In respect of the judge’s comments in describing the defence case as put in cross-examination we can find no basis for complaint.  Because the applicant did not give evidence and because the allegations were all refuted there was little she could do other than to draw the jury’s attention to them as representing what the defence case was.

36.  The applicant also complains that there was insufficient mention by the judge of the exculpatory parts of the video records of interview.  But, on numerous occasions the judge has referred to what the applicant said in his record of interview and she has in addition separately spent some time in addressing its contents.  Furthermore, towards the conclusion of her summing-up she directed the jury as follows:

“In the case of the 1^st accused, in his video-recorded interviews, P82 and P86, it contains both explanations and excuses and sometimes it also contains some admissions as to his participation. You must consider the whole of those video‑recorded interviews in deciding where the truth lies.”

37.  The applicant’s complaint under this ground of appeal is not in respect of any personal comments the judge made in respect of the defence case but whether she fairly placed the applicant’s defence before the jury so that her summing-up was a balanced one.  Determining whether a summing-up is balanced in the circumstances of this complaint requires a consideration of whether it contains a fair statement and analysis of the case for both sides.  As Stock VP emphasized in HKSAR v Umali [2011] 3 HKLRD 55 at 61, paragraph 14(e):

“Ultimately, it is a question of context, degree and “feel.””

38.  This question is not to be determined by a mathematical calculation of the number of minutes or the number of pages of transcript that the judge has spent in describing the cases of the respective parties.  Where a judge can be shown to have omitted large parts of the defence case then that may explain why there is such a contrast between the times spent in describing the two cases.  But that is the limit of the assistance that can be provided by this type of calculation.

39.  It is noteworthy that in the present case the applicant’s calculation refers only to those occasions where the judge separately referred to the applicant or his defence and does not include those occasions when the judge referred to the defence case, or to points made by defence counsel, in the course of discussing aspects of the prosecution case.  Such occasions, and a number of them are present here, are important because they often provide a more effective balance to the prosecution case other than simply setting out in a separate part of the summing-up a description of the defence case.

40.  In the context of the evidence led by the prosecution in this case and the way the defence conducted its case we are satisfied that the judge fairly and accurately described the applicant’s case to the jury and that her summing-up was a balanced one.

41.  The third ground of appeal complains that the judge failed to refer in her summing-up to two matters.  The first was the evidence relating to the later addition by PW1 to the Pol 153 when he over-wrote the times on this document in order, as he said, to clarify what he had earlier written.  This was a matter which impacted on his credibility.  The second matter was her failure to refer to four numbers, 1749, written by PW1 on a piece of paper the contents of which PW1 admitted he used as an aide memoire during the video interviews of the applicant.

42.  Both of these matters related to the credibility of PW1.  The latter also went to that part of the defence case which asserted there had been an earlier record of interview which had been aborted because the applicant was not being cooperative.  The numbers 1749, it was suggested, referred to the commencement time of this earlier aborted video interview.  This suggestion was denied by PW1 but he could not offer any explanation for why he wrote these numbers on this document or to what matter they might have referred.  The document on which these numbers were written was not produced by the defence.

43.  The merit of these complaints, which is essentiality a specific sub-complaint of the second ground of appeal, can only be assessed when placed in the context of the case.  That context is that the defence case was:

(i)     the applicant did not make the admission at the time of his arrest as alleged by PW1;

(ii)    there was an earlier interview which was aborted by the police because the applicant was not cooperating;

(iii)   the applicant was subjected to threats and violence in order to get him to say the things he said in the records of interview; and

(iv)   what he said in the records of interview were not his words but what he was coached by PW1 to say.

44.  The other contextual element which must be borne in mind is that as the applicant did not testify and as all the allegations were denied by the police witnesses, there was in fact no evidence to support them.

45.  So, what then did the judge say of the defence case?  The defence case is referred to by the judge at the beginning of her summing‑up when she summarised for the jury the issues in the case.  She said on the very first page of her summing-up after referring to the two video interviews:

“The 1^st defendant said they were a result of beatings and threats and coercion, the video-recorded interviews, and that he never said the words which PW1 said he said upon his arrest.”

46.  Thus, from the very outset of her summing-up the judge has placed the defence case squarely before the jury.  Throughout her summing-up there are occasions when the judge reminded the jury of the allegations of the defence and the points made by the applicant’s counsel that impacted upon the credibility of the police account.

47.  The jury was also reminded of the changes to the Pol 153 and this reminder was made in the context of the extensive cross-examination of PW1.  The judge said:

“The first prosecution witness was cross-examined by Mr Poon extensively and about, of course, the document P79, about the change of the numbers from 3 to 5 and 0 to 8. Take all that into account.”

48.  There can have been no doubt in the jury’s mind as to what the defence case was and that the credibility of PW1 was part (but only part) of the evidence relevant to the defence case.

49.  It is true that the judge made no mention of the numbers 1749 on the piece of paper prepared by PW1 for the applicant’s records of interview.  But how could that failure detract from the defence case?  Or, perhaps the better question to ask is, if she had mentioned it could that evidence have advanced the defence case?  For all the evidence amounts to is that PW1 took a piece of paper into the video interview room; that he made notations on this piece of paper in the course of the interview; one such notation was the time the interview concluded; another notation was the numbers 1749; and that he could not now recall why he wrote 1749 and to what the numbers might refer.  The defence tried to suggest that the numbers recorded the commencement time of the alleged earlier and aborted record of interview.  But there was no evidence that an earlier aborted record of interview had taken place.  The mere presence of these numbers on this document could never be an evidential basis for inferring that such an interview took place and that 1749 was the commencement time of it.  If the jury was not able to draw any inference from the numbers then how could they use it to raise doubts about the credibility of PW1?  The answer is that they couldn’t.  The reason for the numbers must remain one of those curious, unexplained oddities of evidence that occur in any trial.

50.  We find no merit in the applicant’s third ground of appeal.

51.  The fourth ground of appeal complains of a statement by the judge in respect of certain evidence when she says of that evidence: “That is the Admitted Facts”.  The applicant complains that by her language the judge has misled the jury into believing that a statement made by him in a record of interview, whose voluntariness and weight he disputed, was an Admitted Fact.

52.  The judge’s comment was made at the end of her discussion of the contents of the Admitted Facts, a copy of which was before the jury.  This document contains 20 paragraphs of facts and the judge was taking the jury to only some of them.  She made the impugned comment when addressing the effect of paragraphs 17-20.  These paragraphs deal with the phone call records of the applicant and the 2nd defendant.

53.  These records showed that 3 telephone calls were made from number 5316 1116 to number 6236 8849; one was on 21 January 2011 and two were at 7:07 and 7:21 hours on 29 January 2011.  The 2nd defendant was the registered subscriber of number 5316 1116 and when arrested the applicant was found to be in possession of a phone with the number 6236 8849.

54.  In describing this evidence the judge said:

“Then there were the telephone calls between the 2^nd accused’s number, 5316 1116 - and he is the registered subscriber - and the 1^st accused’s number on 21 January and 29 January. The 2^nd accused has offered an explanation to that and it is a matter for you, members of the jury, at the end of the day, what you consider, whether he is truthful about that.

According to the 1^st accused, that number was given to him by Hung Chai in order to accept or take delivery and on that plastic which is the plastic card- the plastic holder, they call it - to the SIM card of 6236 8849, it says ‘delivery card’ in Chinese.  That is the Admitted Facts.”

55.  After this passage the judge left the Admitted Facts and moved to a discussion of the evidence of PW1.

56.  There is no merit whatsoever in this complaint.  It depends for its legitimacy on a misunderstanding of what the judge was endeavouring to do and a deliberate misconstruction of her closing comment.  Both the Admitted Facts and the transcripts of the video interviews were before the jury.  The approach of the judge in referring to both where they had matters in common was intended to be, and would have been, of assistance to the jury.  There was no risk of her comment causing any confusion in the jury’s mind.

57.  There is no doubt that when the judge said “That is the Admitted Facts” she was doing no more than bringing to an end her discussion of the contents of this document.  This is a ground of appeal that should not have been advanced.

58.  The final ground of appeal concerns the following direction by the judge:

“The 1^st accused has not given evidence…it means that there is no evidence from the 1^st accused to undermine, contradict or explain away the evidence of the prosecution.”

59.  The applicant’s complaint is that by this statement the judge failed to take into account evidence favourable to the applicant that came out of the prosecution case such as:

(i) the altered times on the Pol 153;

(ii) the unexplained numbers written on the aide memoire by PW1; and

(iii) the exculpatory explanations put forward by the applicant in his video interviews.

60.  There is no merit in this complaint.  It is effectively the same complaint as is made in the second and third grounds of appeal but gives expression to it by reference to a specific comment by the judge.  We have already explained why we are satisfied that the judge fairly put the defence case as part of a balanced summing-up and we have dealt specifically with the three matters raised under this final ground of appeal.

61.  The comment that is criticised in this ground of appeal is a standard comment made by judges as part of their directions on the effect of a defendant not giving evidence.  That is why part of the direction are the words “…it means there is no evidence from the 1^st accused …”

62.  It does not mean there is no evidence at all that is favourable to the defence case; it simply, and quite accurately, tells the jury that there is no evidence from the accused himself.  Because it is a comment made in the course of a reference to the giving of evidence it cannot mislead the jury into not treating the exculpatory parts of a mixed statement by a defendant as evidence before them.

Conclusion

63.  For the reasons set out above we dismissed the applicant’s application for leave to appeal his conviction.