HKSAR v. Yim Shek Wo

Case No.CACC 307/2017[2019] HKCA 1164

Court

Court of Appeal

Date15 Oct 2019

Judge—

Case Document

100%Judiciary

CACC 307 /2017

[2019] HKCA 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2017

(ON APPEAL FROM HCCC NO 164 OF 2017)

________________________

BETWEEN
	HKSAR	Respondent
	and
	YIM Shek-wo (嚴錫和)	Applicant

________________________

Before: Hon Macrae VP in Court

Date of Hearing: 15 October 2019

Date of Judgment: 15 October 2019

________________________

J U D G M E N T

________________________

1.The applicant faced an Indictment in the High Court containing a single count of trafficking in 5.95 kilogrammes of a powder containing 3.01 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the offence. On 21 September 2017, after a trial before Deputy Judge Bruce SC (the judge) and a jury, the applicant was found guilty and, on the following day, sentenced to 21½ years’ imprisonment.

2.On 28 September 2017, the applicant filed a Notice of Application for leave to appeal (Form XI) in respect of both conviction and sentence. However, he abandoned his appeal against sentence on 19 October 2017 and now seeks leave to appeal against his conviction only. Legal aid was in due course granted in respect of the application for leave to appeal against conviction only.

The Trial

The prosecution case

3.It was not disputed that the applicant was the driver of a private vehicle bearing registration number NY 1278 (“the vehicle”) which presented itself at the Cargo Examination Compound at Sha Tau Kok Control Point for examination at 7:33 pm on 27 May 2016. Inside the tyre on the spare wheel underneath the vehicle, a Customs officer found 12 transparent bags, each containing two transparent bags of white crystalline substance later confirmed by the Government chemist to contain 3.01 kilogrammes of ketamine narcotic with a street value of HK$779,450. The prosecution alleged that the applicant had knowingly carried the ketamine across the border into Hong Kong from the Mainland for reward.

4.The prosecution case hinged upon the applicant’s verbal admission made at the scene, which was later confirmed in writing by the applicant, namely that he had packed the ketamine in the spare tyre himself and knowingly carried it across the border from the Mainland for a reward of HK$20,000. The applicant was later taken to the Narcotics Bureau at Police Headquarters where he further made full admissions under caution in a subsequent video-recorded interview. The case of the prosecution was that the initial verbal admission, the post-record of the verbal admission and the subsequent video-recorded interview were made entirely voluntarily, and were true.

The defence case

Voir Dire

5.The defence challenged the admissibility of the applicant’s verbal admission, the post-record and the video-recorded interview at voir dire proceedings. The basis of the applicant’s challenge was premised on a number of allegations including the denial of certain rights, threats and inducements made by persons in authority in order to obtain his admissions.

6.The applicant elected to testify at the voir dire. He said that when the vehicle was stopped at the Cargo Examination Compound for examination, police officers had approached him and asked where he had put the dangerous drugs. By that time, the Customs officer had yet to discover the dangerous drugs. The applicant said the police officers had told him to cooperate and confess otherwise he would be sent back to the Mainland where the authorities would deal with the matter, possibly resulting in the imposition of the death penalty. The applicant testified that he was told a storyline that he should give, namely, that he was delivering the ketamine for somebody else for a reward of HK$20,000; the rest of the details as to where and when he had collected the drugs he could make up.

7.Counsel for the applicant at trial made the point, although it seems to have been made with more emphasis before the jury than before the judge on the voir dire, that if the applicant had truly and voluntarily made his admissions, he could not have said he drove to the Mainland at 3 or 4 o’clock in the afternoon to collect the drugs because, according to his movement Records, the applicant was already in the Mainland at those times. It was described as even more unlikely that if the applicant had in fact collected the drugs at 3 or 4 o’clock, he would have come back to Hong Kong through Man Kam To at about 16:26 hours and then gone back to the Mainland at 17:09 hours through Sha Tau Kok with the drugs, before coming back again to Hong Kong at about 19:30 hours, after which he was stopped and arrested with the drugs. The suggestion that he collected the drugs in the afternoon and then decided to take them for a “joyride” across the border again was simply unbelievable.

8.The applicant also testified that when he was at the Cargo Examination Compound, he was already not feeling well. However, he was persuaded by police officers to keep cooperating with them before he would be allowed to see a doctor and a lawyer, and later members of his family. The applicant said he was coached into saying that the numbers written on the packets of all the drugs represented the weight of the individual packets, which were, as it happened, close to the weights later measured by the government chemist. The prosecution, however, argued that the officers would have been taking a risk in dictating what he should say about this aspect, since they could not be sure at such an early stage that those numbers corresponded to the actual weights of the packets.

9.The judge having heard evidence from the prosecution and the defence, ruled that the verbal admission, the post-record and the video‑recorded interview were voluntarily made. He declined to exercise his residual discretion to exclude them and accordingly ruled them to be admissible in evidence.

General issue

10.The defence case put forward at trial was that the applicant was an innocent agent between the sender and receiver of the ketamine in question. He testified that his daily work was to travel to the Mainland in the vehicle with new tyres: the new tyres would then be replaced in the Mainland with some used tyres. He would then drive back to Hong Kong and replace the used tyres with some new tyres and he would routinely make four to five journeys per day.

11.The applicant contended that on the day in question he was doing his routine runs and he did not know that there was ketamine in the spare tyre of the vehicle. Somebody in the Mainland had therefore placed the drugs in the spare tyre knowing that the applicant would take the vehicle across the border and park it at the usual place for the tyres to be replaced in Hong Kong. Somebody would then unload the drugs at a convenient time after the vehicle had been parked.

12.The applicant emphasised that the only reason that he made the admissions of packing and trafficking in the ketamine across the border for a reward was because of the combination of a relentless series of threats and inducements, coupled with his illness that affected him at the material time.

Grounds of appeal

13.In his Perfected Grounds of Appeal filed on 28 March 2019, Mr Wong, counsel for the applicant both at this application and at trial, has advanced essentially four grounds of appeal which may be summarised as follows:

(i) The judge should have ruled the verbal admission, the post‑record and the video-recorded interview inadmissible since his answers had been made involuntarily;

(ii) With sarcastic remarks tantamount to inviting the jury to reject the applicant’s evidence, the judge’s summing-up was unbalanced and amounted to a point-by-point demolition of the defence case;

(iii) The judge’s direction in respect of the Fugitive Offenders Ordinance was uncalled for and the direction was tantamount to inviting the jury to reject the applicant’s evidence that he was threatened by police officers. The direction would also have misled the jury into thinking the evidence of the police officers were more credible than the applicant’s; and

(iv) The judge failed to give a special direction on the drawing of inferences which must be tailored to the circumstances of the case and specifically set in the context of the evidence and the arguments.

14.In respect of Ground 1, Mr Wong submitted that the judge, in his ruling on the voir dire, had failed to address and overcome the inherent improbability that the applicant had collected the ketamine at about 3 to 4 o’clock in the afternoon and then taken it across the border a few times before he was arrested at about 19:30 hours. This point alone must have cast doubt on whether the judge properly evaluated the evidence when he made his decision to admit it.

15.For Ground 2, Mr Wong argued that the summing-up was unbalanced, since the judge had peppered his summary of the applicant’s case with sarcasm. The particular remarks, the subject-matter of this complaint, are as follows:

(i) “For some reason, it was suggested to him by the two officers who were conducting the video recorded interview that it would look rather bad in front of a Hong Kong judge to say that he was moving new tyres in this way and it would be better to say that he was involved in transporting electronics and cloth samples. Quite why the officers would be concerned for the interest of the accused in this regard has not been explained, but it may be something that you may be assisted by in determining where the truth lies in relation to that”^{^[1]};

(ii) “Again, the kind-hearted officer said…Again, I will just leave to you why the officers might have said that rather helpful thing, and I will leave it to you to decide if that helps you to work out where the truth lies and whether there was any coaching”^{^[2]};

(iii) “As if they coached him about that, so the argument runs, they were taking a bit of risk because it might turn out to be ketamine. Even if it was cocaine, or heroin, or something drug, the argument by the prosecution is very simple, they would look like a bunch of idiots if they coached him into saying the wrong drug”^{^[3]};

(iv) “Now, whether that was schooled by the officers or said by the accused of his own free will is something you will have to determine. But you might think it was something of a lucky guess on the part of the police if they were providing the script as far as that is concerned”^{^[4]};

(v) “And intriguingly, you might think, DPC 34383 said that some of the details should be effectively uncheckable. Implicit in all of that was these Narcotics Bureau officers having made an arrest and having got the drug and an admission from the driver, did not want to go to the trouble of investigating the matter any further”^{^[5]}; and

(vi) “Perhaps this was either the officers who had threatened and induced him being kind-hearted or perhaps it was just the officers demonstrating complete indifference to their professional obligations as investigators. I will leave you to make of that what you will.”^{^[6]}

16.By Ground 3, Mr Wong submitted that the applicant’s assertion that he was threatened by police officers into cooperating otherwise he would be sent back to the Mainland did not merit any directions on the effect of the Fugitive Offenders Ordinance and was tantamount to inviting the jury to reject the applicant’s evidence, whilst effectively bolstering the credibility of the police officers. The judge in his summing-up said^{^[7]}:

“Now, the easiest part of this for me is the direction in law. Nobody – nobody – including Hong Kong law enforcement officials have any authority under our law to take somebody who is particularly a Hong Kong identity cardholder, who is in Hong Kong and by force take them across the border of Hong Kong, nobody. There is, I have to tell you but we do not need to spend too much time on it, some legislation whereby somebody who is in Hong Kong may lawfully be taken to other places such as the US, Australia, the United Kingdom; there are a number of countries under the Fugitive Offenders Ordinance. But that does not apply to our case. There is no such arrangement between Hong Kong and the Mainland.

Now, that law, for the other countries I have talked about, contains specifically controlled circumstances in which somebody may be forcibly removed from Hong Kong and taken to that place to stand trial for a specific list of offences. I have to tell you dangerous drugs is amongst them, but it does not apply to our case.

Now, under no circumstances could the accused, in law, be moved to the Mainland, even for a serious offence. If that was done, in law, that would attract serious criminal and civil consequences of the people who booted him across the border. Very serious criminal conduct and very serious civil consequences as well.”

17.In support of his contention, Mr Wong referred to HKSAR v Law Hoi Fu^{^[8]}, where the trial judge had effectively asked the jury to consider as a fact whether “a bunch of lawless police officers” would have blatantly framed up the defendant by planting drugs on him. The Court held that the judge’s remark might have misled the jury into believing that the testimony of the police officers was more credible because they would not have lawlessly and blatantly accused the defendant in such a wrongful way.

18.In relation to Ground 4, Mr Wong complained that the judge had not given an adequate direction on the drawing of inferences when he failed specifically to draw the jury’s attention to the inherent improbability of his answers in the video-recorded interview when compared with his known travel movements. The judge’s reference to the defence point in his summing-up was too brief and mild^{^[9]}.

19.Mr Wong further submitted that the prosecution had relied heavily on the extra time used in the last run and invited the jury to infer that the reason for it was that the applicant needed time to pack the ketamine in the spare tyre. Yet, such evidence did not support the only reasonable inference that the applicant must have used the extra time to pack the drugs.

Respondent’s submissions

20.Mr Derek Lau, on behalf of the respondent, submitted in response to Ground 1 that the applicant’s answers in his video‑recorded interview as to the time he collected the ketamine did not render his clear admissions of having trafficked the drugs inherently improbable. It was not correct, as suggested by Mr Wong, that when the applicant received the call from Ah Wai “on the afternoon of the 27^th day”, he must already have been in the Mainland. It was not impossible for the applicant to have received the telephone call (assuming one was in fact made) whilst in Hong Kong, having returned from the Mainland after his first trip at 12:49 hours, or after his second trip at 14:28 hours; or after his third trip at 16:26 hours; all of which times would have been in the afternoon. The times referred to in the video-recorded interview at which he claimed to have received the drugs were simply too vague and could have been mistaken. The apparent incongruity in the applicant’s answer as to when he said he arrived at the hotel to pick up the drugs was far from sufficient to cast doubt on the voluntariness of the applicant’s confessions.

21.The judge’s ruling on the voir dire was based on his assessment of the evidence and the opportunity of seeing and hearing the witnesses; hence he was in the best position to assess the issue of credibility for the purpose of deciding the issue of admissibility.

22.In reply to Ground 2, Mr Lau submitted that the judge had, at the beginning of the summing-up, given the following direction:

“…in the course of my review of the evidence which I will shortly attempt, I may appear to express my views concerning the facts or emphasise a particular aspect of the evidence. Do not adopt my views unless you agree with them. If I do not mention something which you think is important, you should nevertheless consider it and consider what you think is important and you give it weight that you think is appropriate. I cannot emphasise enough that when it comes to the facts of this case the only thing that counts is your judgment and your evaluation of the facts.”

23.Mr Lau sought to demonstrate that in making each of the impugned remarks, the judge had first referred to the case for the applicant before he went on to point to the contrary argument or submissions made by the prosecution. He had repeatedly reminded the jury that it was for them to decide on the relevant issues and his remarks could not have usurped the jury’s consideration of these matters.

24.In relation to Ground 3, the respondent submitted that the issue of whether or not it was practicable under the law for the police to send the applicant to the Mainland was a relevant matter for the jury to consider in assessing the credibility of the applicant’s allegation. In any event, the judge made it clear to the jury immediately after making the remark that^{^[10]}:

“The real issue is whether these words were said by various officers, and if they were said, whether the accused believed them.”

25.Mr Lau argues that the jury would not have been misled into thinking that the police witnesses were more credible than the applicant. The judge did not suggest that police officers were more likely to tell the truth: he was entitled to ask the jury to consider the plausibility and practicability of the police sending the applicant back to the Mainland in light of the legal position in Hong Kong.

26.Regarding Ground 4, the judge had at the beginning of the summing-up, properly reminded the jury that if they were to draw an inference against the applicant, they could only do so if they considered it to be the only reasonable inference. The judge’s direction on inferences was adequate, appropriate and correct.

Consideration

27.I turn to my consideration of these arguments, bearing in mind that this is an application for leave to appeal and not the appeal itself. The threshold test for me is whether the grounds of appeal advanced, or any of them, are reasonably arguable.

28.In respect of Ground 1, the judge gave a 22-page ruling on admissibility, which is rather unusual in voir dire proceedings where the issues were essentially factual. As I understand it, no complaint is made about what the judge said in that ruling: the complaint lies in what he did not say. The contention by Mr Wong is that the answer about times rendered the entire body of evidence suspect.

29.We have seen that the judge did make reference to the times issue in his summing-up to the jury[11]. He did not make specific reference to it in his 22-page written ruling on the voir dire. However, a judge cannot make reference to every point that is made by a party in voir dire proceedings where the issues are essentially factual, and I have no reason to think, it having been raised by Mr Wong in his written submissions at the voir dire, albeit not in his oral arguments, that the judge would not have had the point, such as it was, in mind.

30.In any event, the point does not seem significant. The applicant’s answers in the video-recorded interview were that he received a telephone call from “Ah Wai” telling him to go to the Mainland to collect the drugs “on the afternoon of the 27^th day”[12]. He then arrived at the Lao Di Fang Hotel to collect them “at around three – three, four o’clock in the afternoon. Around this period of time”[13]. The answers were very vague and do not impinge on the voluntariness of the video-recorded interview. The applicant may have lied about the time and circumstances of the picking up of the drugs or he may simply have been mistaken about, or misstated, the time. I do not consider Ground 1 to be reasonably arguable.

31.Ground 2 is similarly not reasonably arguable and the matters about which complaint is made do not come anywhere near a demolition of the defence case. The judge was entitled to make comments on the evidence, provided that by their extent and character they did not undermine the defence case to such an extent as to render the trial unfair. With respect, the comments were appropriate to the issues and were in no way unbalanced. This is the sort of complaint, as Mr Lau submits, in which one must read the summing-up as a whole. When one does that, the impression is of a very balanced and fair summing-up.

32.In respect of Ground 3, the judge was entitled to tell the jury what the law is in Hong Kong. The important thing to recognise is that whatever the position is at law, it is what the applicant believed about the threat that mattered, as both counsel had told the jury in their respective speeches[14], and as the judge made crystal clear in the following passage, which immediately followed the impugned direction about the illegality of his removal by police officers to the Mainland[15]:

“Now, of course, the accused may not know that. What lawyers would regard as utterly absurd may not be viewed by other people in the same way. The real issue is whether these words were said by various officers, and if they were said, whether the accused believed them. The accused says he was fearful that this might happen. You may recall he was cross‑examined upon the basis that in order to send the accused back he would have to go through Immigration and Customs and all the procedures that have to be gone through. You heard Mr Parry cross-examine him about that. His answer was, well, he believed the threat.”

33.Nor is it reasonably arguable that one of the consequences of the Fugitive Offenders direction was to invite the jury to treat the police evidence as more worthy of belief than the applicant’s. Whatever the law might say, it did not mean that the officers could not have made such a threat, or that the applicant might not have believed it. The ground of appeal is not reasonably arguable.

34.In respect of inferences and the complaint in Ground 4, the judge’s directions were, as Mr Wong concedes, correct and in accordance with the specimen directions in jury trials promulgated by the Hong Kong Judicial Institute. Furthermore, the judge did provide context by relating the directions to various facts and issues in the case and emphasising on a number of occasions that the jury could only draw an inference adverse to the applicant, if it was the only inference to draw. For example, he referred to the time when the applicant appeared to be ill during the search of the vehicle and explained that the jury could only infer from his behaviour that he realised that the drugs were about to be found if they excluded any competing inferences[16]. He also dealt with the prosecution contention that the jury could infer from the longer time the applicant had remained on the Mainland on the final trip that drugs were being loaded into the spare tyre, by drawing attention to the applicant’s alternative explanation concerning the Friday traffic and the fact that it was raining. He reminded the jury that they could not draw an inference adverse to the applicant unless it was the only reasonable one to draw[17]. Ground 4 is not reasonably arguable.

Conclusion

35.The application for leave to appeal is refused. The applicant is duly advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for loss of any time which the applicant has spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the appeal. I should add that the Court’s power under section 83W of the Criminal Procedure Ordinance, Cap 221 is exercisable whatever the length of a particular applicant’s sentence.