HKSAR v. Chan Ka Chun

CACC 226/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 226 OF 2013

(ON APPEAL FROM HCCC 351 OF 2012)

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REASONS FOR JUDGMENT

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.On 20 June 2013, before Beeson J and a jury, the applicant was convicted after trial of one count of ‘trafficking in a dangerous drug’, namely 466.09 grammes of a solid containing 389.58 grammes of cocaine. He was sentenced to 13 years’ imprisonment.  He applied for leave to appeal against that conviction.[1] Having heard submissions, we dismissed his application.  These are our reasons.

THE CASE

2.This is a factually simple case of stop-and-search of the applicant and his car.  It required no more than two police witnesses to exhaust the prosecution case whilst the applicant elected not to give evidence.  The question for the jury was the narrow one of whether the applicant knew there were drugs in his possession.  Accordingly, this is what the judge said at the outset of her summing-up :

“ Members of the jury, on the evening of 15 June, a police party went to the area described in the particulars of the charge ....[2]

They found the defendant walking up and down beside the car looking nervous. The officer, who was in plain clothes, approached him and said he was a police officer[3]. He revealed his identity by showing his warrant card and you will recall as he was in plain clothes he would need to do that for the benefit of the defendant. The defendant was seen holding a box, according to the police, and he threw it at the officer and a short struggle ensued, as a result of which, the defendant was pushed to the ground and eventually handcuffed. In that struggle there were lacerations to the defendant’s mouth, which caused some minor bleeding. Later, with the assistance of the exhibits officer[4] .... the box was opened and lychees were discovered, as was the packet of suspected dangerous drug[5].

After arrest and caution, the defendant told the officer that the drugs in the box were not his. Subsequently, the car by which he had been standing, was searched in his presence and more suspected dangerous drugs was found in two lots[6] under the driver’s seat of the car. The police were able to access the keys because, they say, the keys were found in the pocket of the defendant. The defendant said he had the keys, or it was suggested that he had the keys, but that he had them in his hand.

A second caution was administered and the defendant said, ‘I have just got back the car and the dangerous drugs do not belong to me.’ Under caution, the answer was later recorded by the arresting officer[7] and in the video interview the next day, the defendant gave an explanation about what he said had happened. He said he had taken the car to be fixed by ‘Hak Chai’. While he was speaking to ‘Hak Chai’ he was handed the box and asked to hold it. He was told it was valuable and then ‘Hak Chai’ went off to the lavatory saying he had a stomachache. He did not come back. The police arrived and arrested the defendant.

You will realise that the defendant did not deny that he had the box in his possession, but in his interview he made it clear that he did not know what the contents of the box were and he said he had no knowledge of the drugs that were under the driver’s seat.

Some of the evidence has been challenged in relation to what the police officers have told you about, the procedures that they followed and the actions that they took at the scene, but the main issue that you have to decide in this case is knowledge. You must be sure that the defendant had the carton in his possession, that he knew what was in the carton and similarly that he knew he was in possession of the drugs which were in the car and he knew that the drugs were in the car under the driver’s seat.

There were no admissions by the defendant that the drugs were his or that he had knowledge of them.  The prosecution asks you to draw the inference that he not only had possession of what was in the box, but that he knew what he had in the box was dangerous drugs.  You are asked to do that by some circumstantial evidence the prosecution has put before you.”

3.The question of knowledge, or the inference of it, was contested most strongly over the issue of whether the applicant was in fact holding the fruit carton in his hands.  It was denied by the defence and much was made of the fact that the alleged act of box-throwing was nowhere recorded in PW1’s notebook or witness statement.  Even in his video recorded interview (‘VRI’), jointly conducted by PW1 and PW2, the applicant was left unchallenged when he asserted that he had placed the fruit carton on top of the car’s rear bonnet[8].

4.As was put to the police witnesses in cross-examination, the rest of the defence case is as follows: the police were untruthful about the time of the various stages of the incident; they saw Hak Chai walk away but did nothing; the applicant did not put up a struggle, he injured his face when the police pushed him to the ground; the applicant had Hak Chai’s telephone number and he did provide it to the police[9].

GROUNDS OF APPEAL

5.In contrast to the case at trial, the present appeal is brought within a much narrower ambit.  Under Ground (1), it is argued that because of some crucial mistranslation, the judge misunderstood the content of the VRI and made unfounded criticisms of the applicant’s explanation in this interview[10]. Under Ground (2), the complaint is that given there were two batches of dangerous drugs, the judge ought to have but nonetheless did not ascertain from the jury the exact basis of their verdict, ie whether the applicant was trafficking in the first, second or both batches of drugs; the suggestion is that such an omission would affect the validity of the verdict.  Ground (3) simply alleges that the conviction was unsafe and unsatisfactory and is not developed in argument.

Ascertaining the Basis of Conviction

6.Very sensibly, Mr Tze, who appeared for the applicant in this Court but not below[11], withdrew his Ground (2) and did not seek to rely on it.

What the Judge made of the VRI

7.The argument in Ground (1) goes as follows.

8.The VRI is clear as to what, on the applicant’s account, was his reason for turning up at the scene.  The following is an outline of what he said.  The emphasis is on the fact that his car was still awaiting repair :

(a) The applicant had, sometime before the night in question, handed his car over to Hak Chai for a quotation for its repair (counters 50 and 299–302).  Because he was already planning to visit his mother who lived nearby (counter 50), the applicant agreed to meet Hak Chai at Yau Tong to give him the money (counter 74).  Hak Chai had told him that it was in the region of $2,000 (counter 50).  It was Hak Chai who asked to collect the money on the night in question (counter 90).

(b) It was only at their appointed meeting place that Hak Chai handed him the car key, so that he, the applicant, can move the car if some officer came along and started issuing tickets (counter 74).  Before handing over the key, Hak Chai had said (i) he wanted to go to the toilet, (ii) there was something very valuable inside the fruit carton, (iii) someone would come and collect the carton and (iv) he would like the applicant to keep an eye on the carton in his absence (counters 50, 104, 160 and 162).  As he trusted Hak Chai who still had to take his car away for repair, the applicant was willing to do as Hak Chai requested (counter 312).

(c) This was not the first time that Hak Chai had done such a thing (counter 70).  There were past incidents when Hak Chai would walk away from the car and leave the applicant to watch over his parcel.  These incidents took place in Yuen Long and To Kwa Wan where the applicant had arranged to meet and give Hak Chai money for repairing his car (counters 70 and 114–118).  In all these incidents, someone would turn up and collect the parcel.  Since Hak Chai was in the car repair business, the applicant had assumed these parcels to be spare motor parts (counters 165–168).

9.Failing to grasp its true meaning, however, the judge was unimpressed by the apparent lack of consistency in the applicant’s explanation.  Her misplaced disapproval of it is evident from different parts of her analysis of the VRI in the summing-up.  The following are the judge’s opening remarks on the topic[12] :

“ The relevant parts start at item 50 where he talked about handing the car to the garage and he talked about ‘Hak Chai’. It is quite a lengthy answer and he describes what he wanted to have done. I should point out that throughout the Video Interview the defendant gives slightly different answers at various stages to the same question. It is not entirely clear whether he was waiting to have the car assessed, in other words the quote was to be given, that he was to pay for the work to be done and then have it done, or whether it had been arranged before. At one point it appears that he left the car with ‘Hak Chai’ for two days before he came out to pick it up.”

10.The judge’s mistake, it is submitted, had its genesis in the defective translation of three VRI passages where the applicant was asked by his interviewer to elaborate/clarify his explanation. They are :

Counter 74

“ On that -- that day, I reached there, I -- I intended to -- I reached there on that day, I paid him money for repairing (the car) for me, well, he left -- left me an ignition key, he said, (‘)Hey, you look after the car first, because if a moment later, the car is to be moved, if (you are going) to be ticketed, you can drive (it) away.(‘) Well, so I received the ignition key, well, I stood outside the car and waited. I had no idea that there were such things on the car – car.” (emphasis added)

Counter 310

“ Because in the past there -- there wasn’t any problem all along, there wasn’t any problem all along. Well, anyway -- anyway, that is (we) knew -- knew each other, like that, well, therefore (I) handed over to him. He -- that is, before I saw him, it was okay, (he) had a sense of responsibility, like that, and this time, when he quoted a price for me, he immediately gave me a reply on the price within one (or) two days or so, well, slightly over two thousand bucks for fixing (it), in any event, he fixed (it) for me, well, I -- I ....” (emphasis added)

Counter 314

“ Well, that was why I had the car fixed, well, I -- I arranged with him to meet -- meet in Yao Tong, at my mother’s, I just arrived there, well, he --, he was already there, waited for me there.” (emphasis added)

The contention is that by wrongly rendering the act of the applicant paying (counter 74) and of Hak Chai doing work on the car (counters 310 and 314) in the past tense, the impression is created that the applicant was contradicting himself as to the exact state of his car.

11.It is submitted that because of the wrong translation in counters 74, 310 and 314, which, uncorrected, would mean that the applicant’s car was done repairing, the judge was misled into having a false sense of justification for criticizing the applicant as follows[13] :

“ He was also asked, ‘Why did you help him look after the things?’ referring to the box. The defendant said [at counter 312] :

‘ Well, I’ve known him for 10 years, eight years, he asked me to help look after the things briefly and I would in any event -- I would go upstairs in a while. I wouldn’t drive the car away. I wouldn’t drive the car away immediately. He still needed to help me take the car for fixing. It’s not yet fixed. He’d only asked me for money.’

So that is another variation of the account of why he was at ‘Hak Chai’s’ place ....”

The applicant’s point is: if the judge did not think he said he already had his car fixed in the earlier passages, she would not have accused him of changing his account when he said his car still needed repairing at counter 312.

12.The applicant also points to the following passages in the summing-up which, he submits, are indicative of the judge’s misguided impression of the VRI.  They pertain to three matters which the applicant was alluding to for the first time as he went along: Hak Chai wanting to use the toilet (counter 103); Hak Chai using another excuse to leave the car on a previous occasion (counter 117); and Hak Chai having a stomachache (counter 120).  The emphasis is on the use of such words as “versions” and “first mention”[14] :

“ At 103 he is asked what he did at Yau Lai Estate and at 104 he describes coming across ‘Hak Chai’, chatting briefly.

‘  He said he was going to the toilet, he left behind the ignition key and, “Hey, left behind a box and asked me to look after it for him.  He said that he box was very valuable and asked me not to lose it, like that.  He said that someone would come over to take it back a moment later.”

So this version of the handing over of the box suggests that he is to wait for somebody to collect it from him. At 106 he said that the arrangement with ‘Hak Chai’ was to meet him shortly after 5 to 6 o'clock that night.

At 114 he talks about taking the car before to ‘Hak Chai’ for repairs. He described that he went to Fung Kam Road in Yuen Long to wait for him on that occasion and he paid him to fix his car.

At 116 he said that he knew nothing about the boxes and did not have a look. He was then asked at 117 about the situation in which he was given the things to look after. At that stage there is a slightly different version of the account. He said :

‘  Hey I’m going to buy’ – ‘Hak Chai’ said, “Hey, I’m going to buy something.  Well, you go to look after the car first.  Look after the car first, I’m going to buy something -- buy some spare parts,’ he said.”

At 120 he said that :

‘ In a moment he would probably or would have -- in a moment he would have a friend coming over to take the things back and he asked me to help him look after them. He said he got a stomach ache, he had to go to the toilet.’

That is the first mention of the stomachache part of the story ....” (emphasis added)

13.In sum, the applicant contends that the cumulative effect of all the above-quoted passages is that it would inevitably prejudice the jury in their assessment of the VRI and, given the fact that much of the defence case would depend on whether the applicant’s explanation was or might have been correct, the judge’s directions on the VRI had rendered the conviction unsafe.

Discussion

14.Having had the benefit of the re-certified translation of the VRI, we are in no doubt that the judge had been misled.  As the new version of translation shows, the impugned phrase in counter 74 (“當日落到去我係攞錢畀佢幫我維修”) should really read: “.... on that day, I reached there.  My (purpose) was to bring him the money for the repair work for me”.  Likewise, the one in counter 310 (“佢同我搞掂佢喇總之”) should read: “All in all, he helped me see to it” which, in the relevant context, must be referring to a state of affair in the future.  Conversely, the following words in counter 314 – “我先至整車之嘛” –  should read “that was why I (would) have the car fixed”, and should not have been interpreted as speaking about something in the past.

15.That said, for the reasons that will follow, we are not persuaded that the judge’s analysis of the VRI would so colour the jury’s mind that their verdict is rendered unsafe.

16.First, we have watched the VRI during the hearing and although the applicant was orally fluent, what he said, when shown through a verbatim record in writing, is not the best example of clear communication.  On the contrary, there was much disregard for proper sentence construction and not a few instances of going back and forth in time.  At one point, when relating a past incident (counter 70), and whether or not he was conscious of it, the applicant even subverted his otherwise consistent position and pointed to himself and not Hak Chai as the one giving the excuse to leave the car.  All of that, plus the direct and other-than-idiomatic rendition that pervades the original certified translation, does give a certain factually questionable quality to the VRI, which was not helped by the fact that some of the more important information contained in it was offered piecemeal and not all in one go.  Looking at the matter in the round, we are satisfied that much of what the judge said was directed at that aspect of the VRI, albeit that some of it may have been generated by the said mistranslations.  That it was so would have been obvious to the jury who, we have ascertained, had watched the VRI during the trial and had the assistance of the transcripts at the same time.

17.Second, upon our enquiry, Mr Tze has fairly accepted that, notwithstanding the anomaly at counter 70 (see previous paragraph), the bulk of what the applicant said in the VRI should be clear to the native Cantonese speaker.  It should be clear that, according to the applicant, in the instant case as in the past, Hak Chai would, on occasions of the applicant’s car needing repair, exploit the opportunity, drive it to a certain location and, drumming up an excuse, leave the applicant to watch over it with something “valuable” onboard, the suggestion being that the drugs belonged to Hak Chai and not him.  This concession of Mr Tze is important because as this Count has discovered, almost immediately after the jury was retired (12:38 pm), they had asked to review the VRI on disc (12:45 pm).  Their note to the judge reads: “The juror team would like to take a look of (sic) the video file no. KTRN 12017847 case no. HCCC 351/2012 again!”  This is without a doubt the best proof that, whatever view the judge may have expressed about the VRI, the jury had gone to the primary material to determine for themselves what to make of the applicant’s account.

DISPOSAL

18.For the above reasons, we dismissed the applicant’s application.

Mr Tze Ying-kuen, James, instructed by M/s Au-Yeung, Chan & Ho assigned by Director of Legal Aid, for the Applicant

Mr Sean Wai-sum, Eddie, SADDP of Department of Justice, for the Respondent