HKSAR v. LEE YING LUN

IN THE COURT OF APPEAL

1996, No. 633

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was convicted after a trial before Deputy Judge Wilson and a jury of one count of possession of dangerous drugs, one count of conspiracy to manufacture a dangerous drug and one count of trafficking in dangerous drugs. He seeks leave to appeal against these convictions.

2. A police party was keeping under surveillance a flat on the 5/F of Ying May Building in Mongkok on 27 November 1995. They saw a man seeking to enter the flat. They apprehended him and took from him some keys which were in his possession. One of the keys opened the door to the flat. When they got inside they saw that the flat was divided into 5 cubicles. The applicant was standing outside one of them. This was cubicle No. 5. Although it had a combination lock the door was open. The officers entered and saw the type of paraphernalia and equipment which was indicative of manufacture or treatment of dangerous drugs. They also found the dangerous drugs described in the trafficking count namely 81.15 grams of a mixture containing 21.83 grams of heroin hydrochloride.

3. The police officers say that when they approached the applicant he said "White powder only for my consumption, for fun, give me a chance." One of the officers then administered a caution. In response to this he said "I came only to get a bag of white powder and I know nothing else." In this connection the police had found a packet on the applicant when they searched him and the response could have related exclusively to that or less likely to the dangerous drugs which had been found in the cubicle.

4. There were also two other items of evidence implicating the applicant. The first was the presence of a thumbprint of the applicant on a portable mirror in the cubicle and the second was evidence from the property agent which had let the premises to Mr Har the man who the police had originally seen attempting to enter the flat. The evidence was that although the premises were in Mr Har's name the applicant had also assumed an active role in renting the premises.

5. The prosecution also contended that the applicant had voluntarily made inculpatory statements. The applicant had denied this and claimed that the statements which it was claimed that he had made had only been made as a consequence of assaults upon his person and inducements being offered to him. As a result of this Deputy Judge Wilson conducted a voire dire. At the conclusion of this voire dire he stated that he was not satisfied that the statements were voluntary statements and ruled them inadmissible. He did not however exclude the verbal admissions which had allegedly been made by the applicant at the time of his arrest.

6. The applicant gave evidence. He said that Mr Har had been a friend of his for some time. As he lived nearby he had assisted him in obtaining the tenancy of the cubicle. The explanation he gave for the presence of the thumbprint on the mirror was that he had given the mirror to Mr Har a short time before the raid.

7. He said that on the day in question he had arranged to meet Mr Har. He had gone to Mr Har's cubicle. He did not have any key to the premises or the flat. He had followed someone into the building. The door of the flat had been open. He had knocked on the door of No. 5 cubicle but no one answered. While he was trying to make a telephone call the police party had rushed in. They had immediately assaulted him and told him that they could plant dangerous drugs on him. He denied that he had made any admissions to the police.

8. Perfected Grounds 4 and 5 read as follows:

"4. The Learned Trial Judge conducted a voire dire in respect of two written records of alleged admission and ruled the documents inadmissible but erred in law in failing to rule on the voluntariness of the allegedly oral admission made soon after arrest given that the Applicant/Appellant was alleging that violence was used against him by the arresting officer prior to the alleged oral admission.

5. The Learned Trial Judge further erred in law therefore, in permitting reference to be made during the trial to the alleged oral admission."

9. Mr Oderberg for the applicant places considerable reliance upon the recent Privy Council Cases of Thongjai & another v. The Queen as yet unreported being Privy Council Appeals 15 & 20 of 1997. The Committee considered the circumstances when oral admissions could be admitted as evidence. What was clear was that when a defendant was alleging any improprieties on the part of the police at the time when the admissions were allegedly made this evidence could only be admitted if the judge was satisfied that the admission had been made voluntarily.

10. Mr Saw SC for the prosecution contended that R. v. Thongjai had no application to the present case. The reason for this being that there had been no joinder of issue concerning the verbal admissions on the voire dire. He argued that the passage on p16 of the advice to Her Majesty The Queen which enunciated the relevant principles had to be read in conjunction with the qualifying observations made on p7 of the advice. These were as follows:

"Therefore where the prosecution alleges that the defendant made an oral admission, and the case is raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues are raised which are not mutually exclusive. The first issue, which is for the judge to decide, is whether, on the assumption that the alleged admission was made, it is inadmissible as being involuntary. The second issue, which is for the jury to decide if the judge rules that the alleged admission is admissible in evidence, is whether the admission was in fact made."

11. The words relied upon by Mr Saw were "and the case is raised on behalf of the defendant". Mr Saw took us through the transcript of the relevant passages in the voire dire and drew our attention to the fact that nowhere was reference made to the verbal admissions.

12. In addition to this nowhere in the voire dire was reference made to the fact that the applicant had denied making the admissions.

13. It is not strictly speaking accurate to state that no reference was made to the verbal admissions. The first cautioned statement purported to be a post entry of a verbal admission made by the applicant. It was also manifest from the record of the objections being made by the defence to the admission of the cautioned statements that an allegation was being made by the applicant that he had been subjected to an assault by the police officers immediately after they entered the flat.

14. In all of the circumstances of the case it is perhaps surprising that Deputy Judge Wilson did not when ruling the cautioned statements inadmissible also include the verbal admissions within his ruling. Equally it is surprising that counsel representing the applicant at the trial did not seek to exclude the verbal admissions.

15. The reasons why counsel did not request a ruling and why the judge did not make one, have not been satisfactorily explained to us.

16. The only reasonable conclusion is that both judge and counsel were labouring under the misapprehension arising from the majority judgments in R v Cheung Hon-yeung [1993] 1 HKCLR 292 that it was not open to counsel to submit, either on a voire dire or later in the trial, that an oral confession denied by a defendant was not voluntary. The same misapprehension which led to each of the two judges below in Thongjai's case not to make a necessary ruling on a denied oral confession in the voire dires.

17. In these wholly exceptional circumstances, we are of the opinion that the issue of voluntariness and admissibility was raised on the voire dire in the written grounds put before the judge in the defendant's evidence on the voire dire and in the cross-examination of the police officer and the judge failed to rule upon the issue.

18. Be that as it may we do not think that the failure to adequately ventilate this issue in the voire dire was conclusive of the resolution of this matter.

19. Mr Oderberg contended, in our view correctly, that there is always a duty imposed upon a trial judge to ensure that inadmissible evidence is not admitted. His authority for this proposition was a passage on p223 from the speech of Lord Bridge in Ajodha v. The State [1982] AC 204.

20. In this passage Lord Bridge provided a fairly comprehensive guide to the practice which should be adopted when it was necessary for a judge to determine whether or not an admission should be admitted as evidence.

" As in relation to the substantive law governing the admissibility of confession statements, so also in relation to the proper procedure to be adopted at a jury trial in various circumstances in which a question as to admissibility may arise, the argument before their Lordships ranged over a wide field. Their Lordships would certainly not attempt to lay down an exhaustive code of procedure intended to cover every contingency, but here again it may be helpful to practitioners in some jurisdictions where difficulties seem to have been encountered, if they indicate their understanding of the appropriate procedure in a number of not uncommon situations. (1) In the normal situation which arises at the vast majority of trials where the admissibility of a confession statement is to be challenged, defending counsel will notify prosecuting counsel that an objection to admissibility is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voire dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence: Reg. v. Anderson (1929) 21 Cr.App.R. 178. (2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu. (3) It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled for further cross-examination. If he does so, the issue of voluntariness should be dealt with in the same manner as indicated in paragraph (2) above. (4) Particular difficulties may arise in the trial of an unrepresented defendant, when the judge must, of course, be especially vigilant to ensure a fair trial. No rules can be laid down, but it may be prudent, if the judge has any reason to suppose that the voluntary character of a statement proposed to be put in evidence by the prosecution is likely to be in issue, that he should speak to the defendant before the trial begins and explain his rights in the matter."

21. We agree with the submission made by Mr Oderberg that it is artificial to attempt to limit the responsibilities of a judge in this connection to the voire dire. It is always the duty of a judge to satisfy himself that inadmissible evidence is not admitted.

22. Additionally, special care is expected of a judge where a person defends himself and raises the issue in cross-examination or in evidence. See MacPherson v The Queen (1981) 147 CLR 512.

23. Having regard to the evidence which was before the court of the applicant's allegations of assault and his denial of having made the statements attributed to him it was clearly incumbent upon the judge to making a ruling on the voire dire that the applicant had voluntarily made the admissions before allowing the evidence in or permitting it to remain before the jury.

24. No difficulty arises as a result of the applicant denying that he had ever made the statements. Reference is made to the distinction between total denial and a suggestion that if the statement was made that it was not voluntary in the introductory paragraph of R. v. Thongjai.

" The issue which arises on both of these appeals against conviction, which were heard together, is whether, when a defendant denies that he made an oral admission to the police but also alleges conduct by the police before or at the time of the alleged admission which might render the admission involuntary and inadmissible if it had been made, the trial judge should conduct a voire dire to determine the voluntariness of the alleged admission notwithstanding that the defendant denies that he made it."

25. We have come to the conclusion that the present case cannot convincingly be distinguished from R. v. Thongjai and that these grounds of appeal must succeed.

26. This being the case it is not necessary for us to consider the other grounds of appeal which were advanced.

27. The only other matter we would refer to is that we reject the submission made by Mr Saw that this would be an appropriate case to apply the proviso. It is impossible to conclude that the jury would have returned guilty verdicts even if these admissions had not been before them.

28. We are satisfied that these convictions are unsafe and unsatisfactory. We allow the application and treating it as the appeal we quash the convictions.