HKSAR v. Wong Hing Chin

CACC 360/2018

[2020] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 360 OF 2018

(ON APPEAL FROM HCCC 193 OF 2018)

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Before: Hon McWalters JA in Court

Dates of Hearing: 16 June, 16 July, 17 August and 23 September 2020

Date of Judgment: 23 September 2020

Date of Reasons for Judgment: 28 September 2020

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REASONS FOR JUDGMENT

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1.The applicant was tried on one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance, Cap 134, before Deputy High Court Judge McMahon (“the judge”) and a jury in the Court of First Instance. He was convicted of this count and sentenced to 10 years and 8 months’ imprisonment. Subsequently he filed a Notice of Application for Leave to Appeal against his conviction (Form XI).

2.He was provided with an opportunity to obtain legal representation but has been unable to do so. Consequently, he was unrepresented at the hearing of his application.  After hearing from the applicant I refused his application and said I would hand down my reasons for doing so in due course.  These are my reasons.

The prosecution case

3.At about 14:00 hours on 16 January 2018, PC20936 (PW1) and PC18678 (PW2), together with other team members led by Sgt 374 (PW3), were conducting an anti-drug patrol in plain clothes in Kin Ming Estate, Tseung Kwan O.  They observed the applicant who was standing 5 metres away from them near the ground floor of Ming Yu House.  They saw the applicant look around, squat down and reach into the grass.  A few seconds later, the applicant stood up, went over to some railings and stood there.  A supermarket trolley was beside the grass. 

4.PW2’s suspicion was aroused and so he called for assistance from his team members over his police radio, and he and his colleague approached the applicant.  PW1 asked him what he was doing there and he said he was waiting for a friend to have tea, but could not tell the police officers the name of his friend.  PW1 then conducted a search of the applicant and of a white handbag that he was carrying.  Inside the white handbag, he found a cigarette lighter, a packet of cigarettes and a green resealable plastic bag.  It was an admitted fact that the green resealable plastic bag contained four transparent resealable plastic bags that were each wrapped in tissue paper.  It was subsequently confirmed by the Government Chemist that these four resealable plastic bags contained a total of 102.2 grammes of methamphetamine hydrochloride (“Ice”).  The applicant’s mobile phone was also seized.

5.Three video records of interview (VRIs) were conducted with the applicant and the admissibility of these were not challenged.  In the VRIs, the applicant claimed, inter alia, that the Ice in the four resealable plastic bags was planted on him at the scene by the officers, that he was going to Ming Yu House to meet his friend “Ah Kei”, and that his cousin “Peter” would also use his mobile phone. 

6.At trial, it was not in dispute that the applicant had authorised the police to examine his phone and had assisted them to do this by disclosing the passcode to the phone.  WhatsApp messages with one “Wah Chai” and call records covering the relevant period of time were obtained from the phone and produced.  The prosecution case was that messages sent between “Wah Chai” and the applicant, concerned their dealings in other dangerous drugs on that day and that some of these had occurred only 20 minutes before his arrest.  The prosecution relied on the evidence of these messages to show that the applicant was well aware of the nature of the Ice found in the white bag, and that he intended to traffic in it.

7.It was an admitted fact that based on the average retail price in January 2018 for Ice as a crystalline solid, the Ice that was seized could have been sold at street level to drug users for HK$59,873.

The defence case

8.The applicantelected to give evidence but called no witness.  The defence case was that whilst he was holding the white handbag and was waiting for his friend outside Ming Yu House, the officers approached him and asked him questions.  He claimed he never had possession of the Ice.  In particular, he said PW2, having found the Ice in the supermarket trolley that was near where he was standing, decided to frame him up by alleging that they had found the drugs in his white handbag. 

9.In respect of the WhatsApp messages with “Wah Chai”, he explained that his cousin Peter frequently used his phone for purposes of which he, the applicant, was unaware.  He said that on that day, 16 January, Peter had been using his phone since the early morning until he, the applicant, had travelled to Ming Yu House to meet “Ah Kei”.  He denied that it was he who was exchanging messages with “Wah Chai”, though he conceded in the latter part of his evidence that he had actually answered some of the messages from “Wah Chai” after receiving Peter’s instructions on how to respond to them. 

The applicant’s grounds of appeal

10.In his Form XI, the applicantonly said that the judge had misdirected the jury and that the prosecution failed to prove its case against him beyond reasonable doubt, but did not provide any particulars of these two complaints.  In two letters dated 20 May 2019 and 12 August 2019, he made more specific complaints.  However, at the hearing on 16 June 2020 the applicant said these grounds of appeal were not written by him, that he wanted the court to ignore them and that he would file new grounds. 

11.On 9 September 2020 the applicant filed with the court two documents dated 2 September 2020.  The first document, consisting of three pages, contained the following complaints:

(1)  the prosecution exhibits were collected illegally;

(2)  the applicant did not provide the police with the passcode to his phone and so they must have accessed it illegally.  This had the consequence of:

(i) the contents were illegally gathered;

(ii) the applicant’s counsel acted improperly in making an admission to the judge that the applicant had provided the police with the passcode to his phone.

12.The second document asserted that there was an eyewitness who could testify to his innocence.  He said in this document that he had told his lawyer of the existence of the eyewitness but the lawyer said the witness could be dispensed with.

13.At the hearing the applicant referred to the police sergeant’s notebook but was not able to articulate the specific concern he had in respect of it.  However, he did say that the contents of the notebook was a matter he discussed with his lawyers and that they advised him that the contents were not of benefit to him.  He also repeated the claim that was part of his defence at trial, that the bag he was carrying was small and there was insufficient space in it to accommodate his personal possessions and the drugs.  He maintained his position that he was framed by the police.

Discussion

14.I have considered all of the complaints and do not find that any of them could form the basis of a reasonably arguable ground of appeal.   I shall briefly explain why I have reached that conclusion.

15.In respect of the first ground of appeal, the only illegally obtained evidence of which the applicant complains is the contents of his mobile phone.  However, before discussing the merits of his complaint it should be pointed out that the position adopted by the applicant at trial, through his counsel, was that:

(i)  he had volunteered the phone’s passcode to the police; and

(ii)  the fact that he had volunteered the phone’s passcode to the police was evidence in his favour as it showed that he had nothing to hide.

16.It should also be mentioned that there was evidence that without the cooperation of the applicant in providing the passcode, the police may not have been able to access the phone.  As to the “admission” by the applicant’s counsel this was simply an agreement by his counsel as to what the applicant could be heard to say, in Chinese, on the recording of his interview.  This agreement was made necessary because the transcript contained a slightly different number which the prosecution claimed was simply a transcription error.  Thus, the agreement by counsel was not an admission under section 65C of the Criminal Procedure Ordinance, Cap 221.  Rather, it was simply a recognition as to what, in truth, the applicantcould be heard to have said.  It must also be remembered that, at law, the evidence is the recording of the interview, not the transcript of it.  A transcript of a recording is not evidence but merely an aid to the jury.  If there is an error in it then it is quite right to correct it.

17.I turn now to the complaint that the contents of the applicant’s phone were illegally obtained.  Putting aside the fact that the applicant’s complaint is completely contrary to the position he adopted at trial, it seems to me that his grievances about the police gaining access to the phone and the admission made by his counsel misses the point – the point being that the police were legally entitled to access the contents of the mobile phone.  There cannot be any doubt that the applicant’s phone was lawfully seized by the police and that they were lawfully entitled to search it for evidence.  Whether they gained access to it by means of the passcode provided by the applicant or by some other means available to them is, ultimately, irrelevant to the admissibility of the phone’s contents.  Having lawfully seized the phone and gained access to it, one way or another, they were entitled to use its contents as evidence if the contents were relevant and otherwise admissible. The contents were clearly relevant and their admissibility was the subject of a considered and, in my view, plainly correct ruling by the judge.  I am not persuaded that the applicant’s complaint could form the basis of a reasonably arguable ground of appeal.

18.As to the second ground of appeal concerning the existence of an eyewitness who could prove his innocence, I note that this person has not been identified and the applicant has not furnished the court with a statement by her.  Most important of all, the complainant says that his lawyers were aware of this person and, in the exercise of their professional judgment, made a considered decision not to call her.  This complaint cannot possibly form a reasonably arguable ground of appeal.  

19.None of the other matters to which the applicant referred at the hearing of this application could constitute a reasonably arguable ground of appeal.

Disposition

20.For these reasons I refused the applicant leave to appeal his conviction.  I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221, to direct that part of the time spent by the applicant in custody pending the determination of his appeal should not be reckoned as part of the term of his sentence.

Ms Samantha Chiu SPP, of Department of Justice, for the respondent

The applicant appeared in person