HKSAR v. Tang Wai Leung

CACC 405/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 405 OF 2014

(ON APPEAL FROM HCCC NO. 50 OF 2014)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant faced one count of unlawfully trafficking in a dangerous drug, namely 287.31 grammes of a powder containing 207.23 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty but was convicted after trial before Zervos J and a jury on 14 November 2014 and sentenced to 7 years and 10 months’ imprisonment.

2.On 25 November 2014, the applicant filed a Notice of application for leave to appeal against his conviction only.  On 15 March 2015, we refused the applicant leave to appeal against his conviction and said we would hand down the reasons for our decision in due course. These are our reasons.

The facts

The prosecution case

3.On 23 August 2014, police officers patrolling along Canton Road observed the applicant approaching a taxi which had pulled up nearby.  They then saw the applicant lean into the rear passenger seat of the taxi for several seconds before retracing his steps and entering Kwong Hing Building (“the building”) on Canton Road.  One of the officers followed the applicant into the building and told him that he wished to make enquiries of him, for which purpose he was asked to come out to the pavement outside.  The applicant accordingly accompanied the officer out of the building.

4.Upon enquiry by one of the officers, the applicant explained that a friend had just come to give him a $500 note, which he was holding in his hand.  No explanation was given as to why his friend had taken a taxi to return the $500.  Given that the applicant was hesitant in his answers and appeared to be panicking, the officer suspected that he was in possession of dangerous drugs and informed him that he would conduct a body search upon him.  As a result, a piece of paper with figures written on it was found in the applicant’s wallet, as well as a set of keys on his person, which were later found to open the metal gate to a flat in the building.  When asked what the figures on the piece of paper represented, the applicant did not respond.

5.Having completed his body search, the officer requested the applicant for proof of identity.  The applicant replied that he had lost his identity card but that his passport was at home on the 3^rd floor of the building.  The applicant told the officers that he could bring the officers to his unit to retrieve the passport.  Accordingly, the applicant and the officers went up to the 3^rd floor of the building.  The time was 10.13 pm.

6.Upon reaching the entrance to the premises, the applicant opened the gate with a key and entered the unit. Thereupon, he suddenly grabbed hold of the gate and tried to shut it.  The officers immediately moved to prevent the gate being closed and told the applicant to desist, which instruction he ignored.  A struggle ensued, following which the applicant was pinned to the ground and told to stop struggling.  However, he continued to struggle, as a result of which he was handcuffed.

7.Inside the kitchen of the unit was a woman known as Madam Chow, who was the landlady of the premises.  The applicant was asked to produce proof of identity, whereupon he told the officers to go with him into his room to retrieve his passport.  The officers then accompanied the applicant into his room, the door to which was already ajar with the light and television on, and the applicant pointed to his passport on a shelf above the television cabinet.  Having inspected the passport, one of the officers noticed a box which was slightly open and protruding from a drawer under the television.  In the box, he saw a plastic bag containing some white substance.  A digital scale was also found on top of the box.  A closer look revealed a number of resealable plastic bags in a compartment under the television.  The applicant was thereupon arrested and cautioned for the offence of trafficking in a dangerous drug.

8.The approximate street value of the dangerous drug, later found to be ketamine, was admitted to be about $33,954 as at August 2013.

9.In his video-recorded interview conducted on 24 August 2013, the applicant said that he was the only one who occupied the room of the unit in question[1].

The defence case

10.The applicant gave evidence and called one witness, his ex-girlfriend Michelle, who is the daughter of Madam Chow.  The defence case at trial also relied upon the evidence of Madam Chow, the landlady of the premises in question, who was called by the prosecution but who was turned hostile by the prosecution during her evidence[2].

11.The applicant denied that the drugs found in the room were his, explaining that he would often have friends or his girlfriend over to his room, who would occasionally stay overnight; and that he had left a key outside so that they could gain access to the unit.  It was contended that any one of them could have used his room without his knowledge.  He testified that Madam Chow would also have different boyfriends coming over to the flat.  The applicant, Madam Chow and Michelle would all occasionally use the key outside.  The applicant said that he slept in a flat above Unit 963, which belonged to Michelle, a claim which Madam Chow and Michelle both supported.  He had slept in the flat above Unit 963 on 21 and 22 August, but was not sure if any of his friends had used his room on the 3^rd floor.  Madam Chow gave evidence that his friends had been over to his room the night before.

12.The applicant said that he had gone to collect money from a friend in the taxi, because he understood the friend would be travelling past his building.

13.The applicant said he did not want to take the police into his room, and that he had tried to close the gate in order to retrieve the passport without the police coming into the unit.  He said the police did not tell him that they were going to enter his home, and he had naturally closed the door.  It was also suggested that the police had pulled him out during the struggle with the gate and then pinned him to the ground, which was unlawful.  Furthermore, he did not consent to the officers entering his room.

14.It was contended that the initial search had been conducted unlawfully, and that the applicant was kept in the toilet and unable to witness the alleged finding of the dangerous drugs.

15.The applicant said that the police forced him to say what was recorded in his video-recorded interview, the contents of which were untrue.  He had been threatened by police to admit everything, including the fact that he lived in the unit on the 3^rd floor.

The summing-up

16.As to the issue of whether the applicant consented to the officers entering the unit and his room, the judge directed the jury that “it is a matter for you to consider and what weight if any you put on this issue”.  In relation to the applicant’s case that the search and seizure of the dangerous drugs were unlawful, the judge said:

“(Defence counsel) submitted to you in his closing address that one of two issues was whether the search and seizure of the drugs in the defendant’s room was lawful which he said was not. The lawfulness of the search and seizure of the drugs is not a matter for you to decide. You can take into account the facts and circumstances leading up to and including entry into the defendant’s room together with all the other evidence that has been presented during the trial in order for you to decide the issues I have mentioned in my summing-up to you when considering your verdict on the charge before you.”

17.Regarding the evidence of Madam Chow (the hostile witness), the judge directed the jury:

“You have to decide whether you can accept any part of the evidence which she has given in court, and if so, what part of it. If you decide that there is a serious conflict between the evidence she gave you and the statements previously made by her in her statement, you may think that you should reject her evidence altogether and not rely upon anything she has said in the witness box. It is a matter for you whether you accept or reject a witness’s evidence in whole or in part.”

18.The judge directed the jury on the following matters with regard to the admissions in the video-recorded interview:

“It is up to you to decide whether you can rely on these admissions contained in the defendant’s interview. But you cannot rely upon the contents of the recorded interview of the defendant as evidence against him unless you are sure, firstly, he said the things he is recorded as saying and secondly, what he said was true. When deciding these two things, take into account all the circumstances in which the interview are said to have occurred and ask yourself whether they may have been matters which cast doubt on the reliability of the content of the interview attributed to the defendant. In that regard, consider whether the interview of the defendant may have been made or taken place in circumstances where the police engaged in oppressive or improper conduct. If you think that may be so then it is unsafe to rely on any such interview and you must ignore it.”

19.Finally, the judge framed the following relevant issues for the jury to consider:

“(1) Were dangerous drugs, namely ketamine, and related items and paraphernalia stored in the room? This matter is not in dispute.

(2) Are you sure that the defendant knew that dangerous drugs were stored there? If not, the verdict is not guilty.

(3) Are you sure that the defendant possessed the dangerous drugs for the purpose of dealing in or with the dangerous drugs or possessing the dangerous drugs for the purpose of trafficking?  If not, your verdict is not guilty.  If you are, your verdict is guilty.”

Grounds of appeal against conviction

20.Although in his Form XI, the applicant does not identify any specific grounds of appeal, he has for the purpose of this appeal furnished the Court with several pages of grounds of appeal against conviction, which essentially come down to two substantive complaints.  Firstly, it is said that since his arrest and the officers’ subsequent search of his room were unlawful, the production of the dangerous drugs was inadmissible.  Secondly, complaint is made of the decision by the judge to allow Madam Chow to be turned hostile but, having allowed her to be turned hostile, it is then said that the judge failed to remind the jury that the police did not properly investigate her involvement in the matter.

Consideration

21.In his oral arguments before us, the applicant has indicated that he no longer pursues his first complaint.  In our view, he was right not to do so.  It is plain, as the judge in an extensive and reasoned ruling made clear, that the officers were perfectly entitled to demand that the applicant produce proof of his identity for their inspection, under section 17C(2) of the Immigration Ordinance, Cap 115.  Thus, they were clearly acting in the proper exercise of a lawful duty when they required him to produce proof of his identity in the form of his passport from his home, he having said that he had lost his Identity Card.  Indeed, they would already have been entitled to arrest the applicant on the street for failing to produce proof of his identity for inspection on demand, under section 17D(1) of the said Ordinance.  Instead, the officers yielded to the applicant’s invitation to go up to his unit in order that he might retrieve his passport for their inspection.  To have closed the door on the officers in the circumstances that were described so that they were separated from him and effectively prevented from pursuing a lawful enquiry was an obstruction of those officers in the due execution of their duty, for which they were entitled to restrain and arrest the applicant.

22.As for the ensuing search, the officers were clearly entitled to enter the applicant’s room following his arrest in order to pursue the enquiry which he had tried to obstruct and frustrate.  In any event, even if, which the judge did not accept and nor do we, there had been an unlawful arrest and search, that would not be an automatic bar to the admissibility of the production of the dangerous drugs found at the scene: see HKSAR v Chan Kau Tai [2006] 1 HKLRD 400; HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232.

23.In relation to the second complaint, the applicant submitted that the police had failed to follow proper procedures in investigating Madam Chow, or in searching her room.  He took issue with the judge’s decision to turn her hostile but argued that, having done so, the judge should have told the jury that the police had never properly investigated Madam Chow, who was evidently an unsatisfactory witness given to changing her evidence.

24.The judge again gave a full and reasoned ruling as to why he was allowing Madam Chow to be treated as a hostile witness by the prosecution.  Having recited the obvious and serious departures in her evidence from her original witness statement, he formed the view that Madam Chow:

“appears to be hostile to the prosecution, that is, not desirous of telling the truth to the court and that she is deliberately giving evidence in a way which is inconsistent with her earlier statement made to the police.”

We see no reason to impugn that finding.

25.As for the complaint that the jury were not told in the summing-up that the police had failed to follow proper procedures in investigating Madam Chow, the fact is that Madam Chow was interviewed by the police on the day, and at the scene, of the applicant’s arrest.  Indeed, she signed a police witness statement in Unit 963 less than an hour and a half after his arrest.  Furthermore, it does not appear ever to have been suggested to Madam Chow by defence counsel that she had anything to do with the dangerous drugs found in the applicant’s room.

26.The judge gave the jury a specific direction as to how they should approach Madam Chow’s evidence, which was in conformity with the standard specimen directions relating to the evidence of hostile witnesses.  He directed them as follows:

“(Madam Chow) was called by the prosecution but she gave evidence which did not support the prosecution’s case. The prosecution was therefore allowed to treat her as a hostile witness, and to cross-examine her to show that she had earlier made a statement which contained statements inconsistent with the evidence she had given in court. The contents of the earlier statement were not part of the evidence in the trial, except for those parts of it which she has told you are true. The statement was put before you by the prosecution to throw doubt on the reliability of her evidence here in court.

You have to decide whether you can accept any part of the evidence which she has given in court, and if so, what part of it. If you decide that there is a serious conflict between the evidence she gave you and the statements previously made by her in her statement, you may think that you should reject her evidence altogether and not rely upon anything she has said in the witness box. It is a matter for you whether you accept or reject a witness’s evidence in whole or in part.”

In our judgment, the judge was not required to say anything more than he did say.  We reject the applicant’s complaint that the judge should have gone on to warn the jury that the police had failed to conduct a proper investigation of Madam Chow, a premise which we do not accept in the light of the statement which was immediately taken from her by the police at the premises.  Furthermore, if there were any specific accusations concerning her involvement with dangerous drugs against Madam Chow, no doubt they would have been put to the witness in cross-examination.  It would seem from the judge’s very full recitation of the evidence in his summing-up that no such allegations were made.

27.There is nothing in this second complaint. Finally, the applicant submitted that the police had failed to conduct any investigation into his mobile telephone and car details, so that the prosecution case relied solely upon the dangerous drugs exhibited and the officers’ evidence.  This necessarily required that the evidence of the officers “must meet a higher standard”, which standard they had failed to attain given the discrepancies in their evidence; such as whether the applicant had gone to the toilet or not while in the flat, and the lack of any record of the taxi incident in their notebooks.  We see nothing in these complaints, which were entirely matters of credibility for the jury.

Conclusion

28.There were no merits in any of the matters canvassed by the applicant in this appeal.  Accordingly, leave to appeal against conviction was refused.

Ms Catherine Ko SADPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person