HKSAR v. Ip Tsz Yau

CACC 199/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 199 OF 2015

(ON APPEAL FROM DCCC 70 OF 2015)

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REASONS FOR JUDGMENT

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1.The applicant appeared before District Judge Douglas TH Yau (“the judge”) on a charge sheet containing three charges. The 1^st charge was “Assaulting a police officer in the execution of his duty”, contrary to section 63 of the Police Force Ordinance, Cap 232. The 2^nd charge was “Trafficking in a dangerous drug”, namely, 154 grammes of a powder containing 113.1 grammes of ketamine. The 3^rd charge was also “Trafficking in a dangerous drug”, namely, 11.7 grammes of a powder containing 8.2 grammes of ketamine. The charges were all particularized as having taken place on 9 November 2014. The 1^st and 2^nd charges occurred outside Room 409, Shui Moon House, Tin Shui (2) Estate, Tin Shui Wai, New Territories. The drugs the subject of the 2^nd charge were alleged to have been found concealed in the underpants the applicant was wearing at the time that he was arrested. The 3^rd charge concerned drugs found in his residence which was Room 409, Shui Moon House.

2.On 28 May 2015 the judge convicted the applicant of the 1^st and 2^nd charges and in respect of the 3^rd charge convicted him of the alternative offence of possession of dangerous drugs.  The applicant was subsequently sentenced to a total period of 7 years’ imprisonment.

3.The applicant applied for leave to appeal against his conviction.  At the hearing of the application I granted him leave in respect of all of the grounds of appeal contained in his Perfected Grounds of Appeal Against Conviction.  I said I would hand down my reasons for doing so at a later date and this I now do.  

The prosecution case

4.It was the prosecution case that on the evening of 9 November 2014 eight police officers conducted an anti-narcotics operation outside the residence of the applicant at Room 409, Shui Moon House, Tin Shui Estate.  Only three of those officers testified in the prosecution case.  It was the evidence of the officers that at around 7:52 pm the applicant was seen coming out of his residence and he was then intercepted by the police.  He was wearing a yellow jacket and blue jeans.   The officers testified that the applicant was “alone at the time of his apprehension outside his flat, and that there was nobody else in the vicinity.”[1]

5.When the arresting officer revealed his police identity and demanded that the applicantproduce proof of identity the applicantsuddenly used his hands to push against the chest of this officer causing him to bump against the wall behind him.  Other police officers came to his aid and the applicant continued to struggle with them but was eventually subdued.  A search was then conducted of his person and inside his underpants a plastic bag was found which contained:

(1) 6 plastic bags containing a total of 76.7 grammes of a powder containing 57.9 grammes of ketamine; and

(2) a further 6 plastic bags containing a total of 77.3 grammes of a powder containing 55.2 grammes of ketamine.

6.The arresting officer agreed that someone from a flat opposite to Room 409 opened the door and asked what was going on.  However, the arresting officer did not pay attention to this person.

7.At the time of his arrest the applicant was cautioned but he indicated that he had nothing to say. 

8.The police officers were in possession of a search warrant which authorized them to enter and search the applicant’s residence.  This they then did.  Inside the bedroom of the residence the police found a plastic bag containing 11.7 grammes of powder containing 8.2 grammes of ketamine.  On the same desk the officers also found cash of $21,000 and two mobile phones.  When cautioned for this offence the applicant claimed the ketamine was for his self-consumption and the cash found on the computer desk belonged to him.

9.Two post-record notebook entries were made in respect of both of the applicant’s responses to caution. The first post-record notebook entry was an abbreviated one and did not refer to any detail of the offences including not mentioning that the place where the drugs were found in respect of the 2^nd charge was in the applicant’s underwear.  The second post-record notebook entry was far more detailed.  It was the prosecution case that the applicant signed against both of his responses to caution in the abbreviated post-record notebook entry but refused to sign against the more detailed post-record notebook entry. 

The defence case

10.It was the defence case that the police had fabricated the case against the applicant.  The applicant claimed he was in the lift lobby of his floor in the company of two friends at the time he was intercepted by the police and that he did not assault any police officer, he was not in possession of any drugs when intercepted and nor were there any drugs in his flat. 

11.The applicant said that his friends were brought by the police to the corridor where they were ordered to squat down.  Then the applicant’s neighbour, Mr Kwan, came out from the flat opposite to Room 409 and asked what was going on.  The applicant asked him to keep an eye on what was happening.  The applicant’s two friends were then taken by the police to a rear staircase.  The applicant alleged that four police officers brought him to another staircase on the other side where he was threatened to confess and was assaulted.  The applicant testified that the drugs that the police claimed they seized from his underpants had in fact been brought by the police from the bottom of the mesh near the water meter room and were contained in a big transparent bag.

12.The applicant denied making the statement that the police claimed he made in response to the caution that was administered to him inside his flat in respect of the drugs allegedly found there but he admitted signing the first, abbreviated, post-record notebook entry at the 19:56 entry.  Furthermore, he claimed that when intercepted by the police he was not wearing underpants and his clothing was black shorts and a white T-shirt.  He claimed that it was only after he was brought back into his home that he put on underpants and changed into the jacket and jeans.

13.In support of his case the applicant gave evidence and he called one of the two persons who he claimed were with him at the time he was intercepted by the police.  He also called the neighbour who came out of his flat at the time his arrest was occurring and who observed some of the scene including the fact that the applicant was in the company of two other persons. 

14.The judge summarized the important elements of these two supporting witnesses as follows:

“... The defendant gave evidence himself and called two defence witnesses to corroborate his evidence as to his attire at the time he was subdued in the corridor outside his flat, and that two of the defendant’s friends were also present at the scene of apprehension and that those two friends themselves were held by the Police officers in the rear staircase for 3 hours before they were allowed to leave.”[2]

The judge’s Reasons for Verdict

15.The judge recognized that a key issue for him to resolve in the case was the credibility of the police witnesses as there was contradictory evidence from the applicant and his witnesses.  The judge said in respect of the defence evidence:

“Although the defence witnesses’ evidence do not say directly as to how the Police had threatened the defendant and planted the drugs against the defendant, their evidence, if accepted, would cast a reasonable doubt on the credibility of the prosecution witnesses. The court will have to consider whether the prosecution witnesses’ wrong description of the attire of the defendant, and their failure to acknowledge the presence of the two friends of the defendant was an act of lying or mere forgetfulness on the part of the witnesses. If the wrong description and failure to mention was deliberate, the court will then have to consider whether such conduct would render the rest of the evidence of the prosecution witnesses unreliable and incredible.”

16.The judge subsequently resolved the contradictions between the prosecution and defence witnesses by finding the prosecution witnesses to be truthful and the defence witnesses to be liars.  He said at paragraphs 127-130:

“127. Having seen and heard Mr. Kwan and Mr. Chan, I find the version of fact as told by them inherently improbable.

128. There is no reason whatsoever for the police officers to lie about the presence of Mr. Chan and Ah Ming, if they were really there. If the police are framing the defendant, and if Mr. Chan and Ah Ming were there, it would make no sense for the police to completely erase their presence. It would have been much easier for the police to take down their particulars and then send them away before proceeding to assault and frame the defendant.

129. Upon the basis that there was no reason for the police to lie about Mr. Chan and Ah Ming’s presence, there can be two explanations as to the absence of Mr. Chan and Ah Ming in the prosecution witness’ evidence. Either Mr. Chan and Mr. Kwan are lying about Mr. Chan and Ah Ming’s presence, or PW1, PW2 and PW3 were not aware that Mr. Chan and Ah Ming were there.

130. I find that it is unlikely that the police officers would not be aware of the presence of Chan and Ah Ming given the fact that the incident took place in the corridor on the 4^th floor. The only irresistible inference is then that Mr. Kwan and Mr. Chan lied about the latter’s presence at scene that day, and I do so find.”

17.In determining the issue of the credibility of the applicantand of the accusations he was making of police misconduct, the judge had regard to the fact that the applicant had not made any complaint about that misconduct.  At paragraph 76 of his Reasons for Verdict the judge said:

“76. At the end of the defendant’s cross-examination, I inquired with the defendant if he was allowed to see the Duty Officer when he was brought back to Tin Shui Wai police station. The defendant said he was allowed to see the Duty Officer, but he did not complain about what PW3 did to the Duty Officer, nor did he file any complaint about the sergeant or the other police officers at all. Neither prosecution counsel nor defence counsel had any follow up questions.”

And at paragraphs of 121-122 he said:

“121. I find it inherently improbable then that someone of the defendant’s age, experience and strong character would choose not to complain to the Duty Officer at the Police station about how he had been assaulted and framed by the police officers and PW3.

122. According to the defendant’s own evidence, he has 7 previous convictions. It was not the first time that he had been to a police station. It was not the first time that he had been arrested by the police. It was not the case of, say, a teenager being arrested for the first time and too scared to complain to anyone about police impropriety. I find that the only reason why the defendant did not complain to the Duty Officer about PW3 framing him and police officers assaulting him is because it never happened. The defendant had made it up in order to discredit the evidence of the police officers.”

The grounds of appeal

18.There are four grounds of appeal.  The first two grounds complain of a material non-disclosure by the prosecution in respect of notebook entries made by other police officers participating in the anti-narcotics operation and in consequence of which the judge’s assessment of the evidence and of the credibility of the witnesses was flawed.  These notebook entries confirmed the presence in the vicinity of where the applicant was arrested of the two men whom the applicant claimed were accompanying him.  The applicant has filed with the court a Notice of Motion and supporting affirmation in order to place before the court copies of these notebook entries.

19.The third ground of appeal complains that the judge used the fact of the applicant’s non-complaint of police misconduct in the course of assessing the credibility of the applicant and of his allegations in breach of his right of silence.  The applicant relied on the judgment of the Court of Final Appeal in HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600.  

20.The fourth ground of appeal is that by virtue of the 1^st‑3^rd grounds of appeal and other additional matters the convictions are unsafe and unsatisfactory.

The respondent’s submissions

21.In respect of the first two grounds of appeal the respondent objected to the fresh evidence being adduced before the Court of Appeal on the basis that the applicant has failed to give a reasonable explanation for failing to adduce it at trial.  The respondent also submitted that the notebook entries were not disclosable as their contents were not relevant to the issues before the court.

22.In respect of the third ground of appeal the respondent conceded that the applicant had not waived his right of silence in relation to the first two charges but argued that whether he waived it in relation to the third charge was a live issue in the trial, for the resolution of which the judge was entitled to have regard to the fact of the applicant’s non-complaint.  In support of this submission the respondent relied on the judgment of the Court of Appeal in HKSAR v Lam Sze Nga [2007] 2 HKLRD 75.

Discussion

23.On their face the notebook entries were compiled by officers participating in the anti-narcotics operation and contain notes of what transpired in that operation.  That being so it is reasonably arguable that they fall into the category of disclosable material.  Given that they, again on their face, appear to relate to an issue the judge found he had to resolve, their non-disclosure arguably impacted adversely to the applicant on the fairness of the trial.

24.In relation to the third ground of appeal there is no dispute that the applicant had not waived his right of silence in respect of the first two charges but that in respect of the third charge an issue existed of whether he had waived it.  In making use of the fact of the applicant’s non-complaint of police misconduct the judge did not refer to the applicant’s non-waiver of his right to silence in respect of the first two charges.  I am satisfied that it is reasonably arguable that in making use of the fact of the applicant’s non-complaint in the way he did the judge has acted in breach of HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600.

25.As the fourth ground of appeal flows from and is linked to the first three grounds of appeal I am persuaded that it too is reasonably arguable.

Conclusion

26.For these reasons I granted leave to appeal.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

Ms Chong Kwan Yu Sezen, instructed by To, Lam & Co, assigned by DLA, for the applicant