HKSAR v. Chan Sai Suet

CACC 322/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 322 OF 2015

(ON APPEAL FROM HCCC NO 443 OF 2014)

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Reasons for Judgment of the Court):

1.On 11 September 2015, following a trial before Yau J (the judge) and a jury, the applicant was convicted by unanimous verdict of the jury of a single count of unlawfully trafficking in a dangerous drug on 13 March 2014, consisting of 104.31 grammes of methamphetamine hydrochloride, also known as Ice. The applicant was sentenced to 10 years and 7 months’ imprisonment.

2.The applicant applied for leave to appeal the conviction on the basis of her homemade grounds.  She appeared in person having had legal aid refused on 28 December 2015 and 7 July 2016 for her appeal.  The Bar Free Legal Service on 19 May 2016 and the Faculty of Law at the University of Hong Kong on 14 August 2017 also refused to assist the applicant in her appeal. 

3.By letter dated 28 July 2017, the applicant informed the Court that she extracted two witness statements from her papers, which had been supplied by the Legal Aid Department, and noted that her counsel at trial did not call these two witnesses.  She applied for the Court’s direction that legal aid be granted to her and that her appeal be adjourned.  We refused the application.

4.We proceeded to hear the applicant’s application for leave to appeal her conviction which we also refused.  We said that we would give reasons for our decision in due course.  This we now do.

The trial

5.There was no dispute at trial that on 13 March 2014, a team of police officers attended premises in Ka Fung Mansion, Mongkok where they found the quantity of Ice as specified in the count in two separate bags.  At the time, the premises were leased to Lee Shek Tsui, who the applicant referred to as “Lee Chai”. 

6.When the police officers entered the premises they found two persons in a sitting room and six persons, including the applicant, in a room with a mahjong table.  The two bags of drugs were found in the mahjong room, the first on the floor near the mahjong table and the second under a sofa.  After each bag of drugs was found, the applicant was cautioned, and on each occasion she denied having any knowledge of the drugs or to whom they belonged.  She was then arrested.

The prosecution case

7.In a subsequent video recorded interview under caution, the applicant admitted that she had made arrangements with a person by the name of “Tai Fat Chai” to buy 100 grammes of Ice for the sum of $8,000 and for him to deliver the drugs to the premises where she would hand them over to Lee Chai for a reward of $400. 

8.The police later searched the applicant’s home but nothing suspicious was found.

The defence case

9.Although the applicant accepted in her testimony that she had spoken the words recorded in the video recorded interview, she said that she had done so only because the interviewing officer told her that if she did not want to be in trouble she should put the blame on Lee Chai, otherwise they would blame her.  She said that the interviewing officer (who was designated as PW1 at trial) told her that he would teach her what to say in her interview.  She said she participated in the interview because the interviewing officer induced and threatened her to do so. 

10.As to her account of the events on that day, the defendant testified that she owed Lee Chai $8,000 from mahjong and that Lee Chai owed Tai Fat Chai the same amount, and that Tai Fat Chai had come to the premises to collect this sum from her.

The voir dire

11.Prior to the trial before the jury, the judge had conducted a voir dire hearing to determine the applicant’s challenge to the admissibility of the interview on the ground it was not made voluntarily.  

12.The judge, in considering the applicant’s allegations, accepted the evidence of the two police officers who denied the allegations, and rejected the applicant’s evidence who he found not to be an honest and reliable witness.

13.The judge ruled that the interview had been made voluntarily by the applicant and was admissible.  He also ruled that there were no other grounds upon which to exercise his discretion to exclude the interview. 

The grounds of appeal

14.The applicant in her homemade grounds of appeal noted that the only inculpatory evidence against her were her admissions made in an interview which was challenged.  She complained that the judge gave an unbalanced summing up to the jury by spending more time on the prosecution case than the defence case.  She also complained that the judge did not ask the jury to consider whether she would have made the admissions having made denials earlier, and particularly when it was the only evidence against her, and whether her admissions were made voluntarily or under inducement or threat.  It would appear that she was implicitly complaining that the judge erred in ruling that the interview made by the applicant was admissible. 

Discussion

15.We have examined the closing submissions and the judge’s ruling on the voir dire hearing and are satisfied that the judge was fully aware and took into account the issues raised by the applicant when coming to his decision that the interview was made voluntarily by the applicant and was therefore admissible.  There is no substance to this complaint.

16.We have also examined the judge’s summing up to the jury and find no substance to the complaints made by the applicant.  The judge presented a comprehensive summary of the evidence, both from the prosecution and the defence.[1]  In the course of summarising the prosecution evidence, he referred to the matters raised in cross-examination by the defence.  He further noted that the prosecution case relied heavily on the applicant’s admissions in her interview and carefully directed the jury as to how they should approach such evidence.[2]  He reviewed and explained the applicant’s case which he repeatedly reminded the jury to bear in mind when considering the evidence together with relevant issues. 

17.The very matters that the applicant said the judge did not address were indeed addressed by him in a thorough and meticulous manner.  This is amply illustrated by the following extracts from a lengthy discussion by the judge of these matters in his summing up to the jury where he said:

“The case of the prosecution relies heavily on the admissions of the defendant in the video-recorded interview. You must approach this piece of evidence very carefully. The prosecution asserts that the defendant, having fully been explained about her rights, willingly took part in the video-recorded interview and that the physical state of the defendant was fit to do so. PW1 denies all the allegations of misconduct, of inducing and threatening the defendant to make her confess according to his wish in the video-recorded interview.

On the other hand, the defendant asserts that what she said in the video-recorded interview was not true and she just followed what PW1 taught her to say. She was induced and threatened by PW1 to the effect that if she co-operated, she would be out of trouble and the video-recorded interview would be quick and she could go home, but if she did not say what PW1 told her to say, the police would put the blame of the dangerous drug on her. ...”[3]

18.He went on to say:

“You must bear in mind that it is for the prosecution to prove beyond a reasonable doubt that the admissions were made by the defendant voluntarily in the sense that it is not the result of any inducements or threats held out or exerted by the police or any misconduct of any police officers.

The prosecution also has the burden to satisfy you so that you are sure that the admissions are true. In this connection, you will like to consider the evidence in the case as a whole, including the testimonies of the prosecution witnesses and the defendant; how the video-recorded interview was conducted; the way the questions were put to the defendant; the nature of the questions put; the topics or areas covered by the questions; the number of questions put; how the defendant answered the questions and the nature of the answers given by the defendant.

You may like to ask the question of why the defendant, who had all along denied to have any knowledge of the dangerous drug, would make admissions in the video-recorded interview. You must treat this as a denial by the defendant … ”[4] (Italics added)

19.We also considered the judge’s summing up generally and we found that the judge’s summary of the evidence and the issues, as well as his directions, were comprehensive and a model of fairness.

Application for legal aid and an adjournment

20.At the commencement of our judgment, we refused the applicant’s application for the Court’s direction that legal aid be granted to her for her appeal and for an adjournment of these proceedings.

21.As noted earlier, the applicant had repeatedly been refused legal aid and legal assistance in relation to her appeal, but just prior to the appeal hearing she wrote to the Court, referring to two witness statements, without explaining their significance, requesting the Court’s direction that she be given legal aid.  There have been previous adjournments of the proceedings at the applicant’s request in order for her to apply or reapply for legal aid which applications were ultimately refused.

22.The two statements were purportedly from two persons who visited the premises.  They variously stated that on previous occasions at the premises they observed transactions taking place by Lee Chai of the sale of Ice to others.  One of the witnesses stated that she observed the applicant consume Ice at the premises on the night in question. 

23.When making her application before us, the applicant confirmed that she was aware of the contents of the statements at the time of her trial and after discussion with counsel it was decided not to call the witnesses on her behalf. 

24.We concluded that given the circumstances, there was no basis to accede to the applicant’s last minute application.

Conclusion

25.For the reasons given above, the application for leave to appeal against conviction was refused and the appeal was dismissed.

Ms Peggy Lo, SPP of Department of Justice, for HKSAR

The applicant appeared in person

[1] Appeal Bundle, 28H-33I (the prosecution evidence from the two prosecution witnesses) and 33J-40B (the defendant’s evidence).

[2] Appeal Bundle, 41C-48C (the contents of the applicant’s interview together with a summary of the issues and directions to the jury).

[3] Appeal Bundle, 41M-42B.

[4] Appeal Bundle, 43B-K.