HKSAR v. Ching Hung Man

CACC000175/1998

CACC175/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 175 OF 1998

(ON APPEAL FROM HCCC 143 OF 1997)

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Coram: Hon. Stuart-Moore, V.-P., Wong, J.A. and Findlay, J.

Date of Hearing: 19 August 1999

Date of Judgment: 19 August 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 12th March 1998, following a trial before V. Bokhary J. and a jury, the Applicant was convicted of trafficking in a mixture containing 208.37 grammes of heroin hydrochloride. He was sentenced to twelve years' imprisonment which was ordered to run from the expiration of a 2 1/2 year sentence he was already then serving. The Applicant now seeks leave to appeal against conviction.

2. The retail value of the drugs allegedly trafficked by the Applicant was approximately $211,000. They were found on 14th January 1997 in a plastic bag, together with other items, which was hanging from the living room window-grille inside the Applicant's father's flat at Room 3314, Tao Yuen House, Chuk Yuen North Estate.

3. It was the prosecution's case that on 25th January 1997, the Applicant made a full written confession to Customs Officers that he had been dealing in those drugs and bore full responsibility for them. The Applicant's defence was that the confession was a false one which had been extracted by inducements and threats.

4. Against that background, the Applicant has filed lengthy grounds of appeal, most of which are directed in one way or another at the evidence relating to the alleged confession.

5. Originally the Applicant submitted seven grounds. The first of these was that the judge was put under improper pressure by the prosecutor who indicated from the outset that if the Applicant's statement was ruled inadmissible, the prosecution would be placed in the position of having to offer no evidence. This is not a ground of any substance. The prosecutor was doing no more than pointing out the obvious practical effect of being unable to present a case, assuming the confession statement was excluded. His case depended upon it, and the knowledge that this was so could not have put the judge under any pressure to make a ruling that it was admissible.

6. The remaining six grounds in the original application have effectively been incorporated in the far lengthier submission which is dated 4th June 1999, which contains what are called six "additional grounds".

7. I propose to start with the fifth of those grounds. This makes a complaint that the judge interfered in the cross-examination of prosecution witnesses to the extent that it caused the Applicant's counsel at trial to deviate from the points he was trying to make. Obviously this is a serious complaint, but it has to be seen in the light of a trial that occupied, including the days when evidence was called on the voir dire to decide the admissibility of the Applicant's confession, no less than 19 working days. This was a case of unusual simplicity for the High Court, and the time occupied for a trial of this kind is staggering. A perusal of the transcript reveals why the trial was probably extended to such extraordinary lengths, and it also provides the answer to the Applicant's complaint. Considerable time was wasted by the unnecessary repetition of questions by defence counsel. One of many illustrations of this is to be found at page 250R in the limited transcript that we have been provided with for the purposes of this application:

"Court: I thought you had already agreed to move on, you're still on the same point. You can make your submission - I mean, cross-examination is not for the purpose of arguing with the witness, he's already answered you that he thought that he demanded - he deemed that to be sufficient. You can make whatever you wish to make in your submission."

Another example at page 395C where the Court again interrupted counsel by saying:

"Court: I have allowed this line of questioning because I really - I don't want to - you know, I want to give as much leeway as possible to the defence.

Defence Counsel: Yes.

Court: But really, I mean, all these assumptions - I mean, can you get back to the case now? I haven't stopped you but, really, there is a limit, all right? Can we get back to the facts of the case, all right?"

8. Those two illustrations are examples of many others that can be found in the transcript. There were numerous interruptions made by the judge, and it is quite clear, in a case lasting this length of time, that defence counsel was able to develop the Applicant's case in full. It is not surprising that the judge found it necessary to try to restrict the length of time being taken when defence counsel repeated the points which had already been made on the Applicant's behalf. Other interruptions show the judge asking for clarification of what was being asked of the witness or being given in reply by the witness and these were entirely proper. There is no substance in this ground.

9. Turning to the sixth additional ground, the Applicant seeks to criticize points which had been made by the prosecutor in his final speech to the jury. One of these was concerned with the evidence of Customs Officer 9046 who had had difficulty in his recollection of some of the events. The Applicant's complaint is that when asked about the record of interview, Officer 9046 had no difficulty in recalling it, yet on other matters on which defence counsel cross-examined his memory was less reliable. Bearing in mind that the trial started over a year after the events of the case itself, it is not surprising that Officer 9046 did have some difficulty. Be that as it may, this issue was the subject of perfectly proper comment in the final speeches of counsel, and there is no merit in this ground.

10. The third additional ground of appeal is concerned with the contradictions in the evidence. The Applicant draws attention to numerous discrepancies between Customs Officers 8861 and 9046. It seems to this court that none of these was of any great importance but that, in any event, the jury would have been able to give them such weight as they felt right. The judge made the point in her summing up extremely well as to how the jury should approach this aspect of the evidence and, at page 4D of the summing up, she said:

"Whenever there is any discrepancy between what a witness says at one stage and what that witness says at another stage, you should take such discrepancy into account when you consider that witness's reliability. Any discrepancy between what different prosecution witnesses say should be taken into account when considering their reliability.

(Counsel) for the defence attacked the prosecution's evidence by pointing to discrepancies therein. Mr. Shaw for the prosecution said in effect that those discrepancies are only to be expected when officers have not conspired upon a false account and are honestly giving evidence of events which happened some time ago. As what they said to you about discrepancies will be fresh in your memory, I will not repeat it. Bear it carefully in your mind and give it such weight as you think fit."

11. The remaining additional grounds, numbered 1, 2 and 4, and the remaining original grounds of appeal are all directed at the confession evidence. During the trial, evidence was led by the prosecution of an oral confession followed by the written and signed confession, which was produced as Exh. 29A in the English translation. Both were hotly disputed. Customs Officer 8861 gave evidence of the oral confession and the Applicant's case was that it was a complete fabrication. The written admissions were more specific than the earlier oral confession and amounted to a full confession to the offence of trafficking if it was accepted as a true confession.

12. The Applicant complains firstly that the Customs Officers failed to follow the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued on 2nd October 1992 by the Secretary for Security. Secondly, he complains that the decisions taken by the trial judge in relation to Customs Officer 8861's notebook. Thirdly, before the statement was taken from him, the Applicant complains that his rights were ignored.

13. All of these matters can be dealt with shortly and together. Comment has already been made that this case occupied an inordinate length of time for a trial which was as uncomplicated and straightforward as this. Essentially, this was a case with two important prosecution witnesses on one side and the Applicant who denied what they were saying on the other side. The Applicant can hardly complain that his side of the story was not given thorough consideration when such an extraordinary length of time seems to have been devoted to it.

14. Amongst the points made by the Applicant, he referred the Court to page 281 of the transcript where Customs Officer 8861 is shown to have told the jury that he had written the final paragraph in Exh. 29A in the standard language which is usually adopted to indicate that the statement is accurate before showing the Applicant his statement to read. The Applicant submitted that this action denied him the right to correct anything which had been written down. This, of course, does not follow at all and by reading the transcript beyond the point mentioned by the Applicant himself, it becomes apparent that the Applicant was permitted to read the whole of the statement before signing to indicate his assent to its accuracy.

15. In relation to Customs Officer 8861's notebook, the Applicant submitted that the Duty Officer was handed this at 14.16 hours on 25th January 1997 and yet the relevant entry shows that the conversation with the Applicant took place at 14.15 hours, and also shows a different time for the handing over of the Applicant to the time given by the Duty Officer. The Applicant also complains that the full wording of the caution was absent from the notebook even though the Chinese characters denoting "verbal caution" were to be found.

16. Again, all of these matters were fully canvassed at the trial and they do not provide grounds of appeal of any substance. Indeed, so far as the discrepancy over one minute is concerned, Miss Lai, counsel for the Respondent, has confirmed what appeared to be apparent from the transcript that this was an issue pursued in the voir dire and never pursued before the jury. If it had any importance at all, its significance appears to have been utterly peripheral.

17. In a further but linked ground of complaint, which for some reason is attached to the fifth additional ground of appeal, the Applicant submitted that the judge should not have directed the jury in the way that she did at page 9D of the summing up. He again emphasised this aspect during his submissions in court today. The passage reads:

"You have heard about certain alleged breaches of rules and directions governing the taking of statements. Those are rules of guidance for investigators. They have their place and their importance. But at the end of the day, they're only rules of guidance for investigators. Consider them; but none of the alleged breaches prohibit you from acting on any admission here. Look at the evidence and use your common sense in the light of my directions.

Where you are sure that a statement was made by the accused and contained true admissions by him, then you are entitled to act on such admissions."

18. In the circumstances, this was a perfectly proper direction to have given and there is no merit in the point made by the Applicant that the real issue was not whether he had admitted his guilt but whether the Customs Officers had followed the rules and directions. The Applicant should be aware that the admissibility of any confession is almost invariably determined by the judge's decision as to whether or not it has been made voluntarily. Whilst there is a very limited residual discretion to exclude evidence which has been obtained unfairly, this is rarely applicable and, in the present case, could not possibly have had any application.

19. The Applicant has also submitted that at page 433 in the transcript, where the trial judge was being asked to reconsider her original ruling as to the admissibility of the confession evidence, insufficient reasons were given for rejecting the application. Again, this ground may have arisen in the Applicant's mind as a result of his misunderstanding of the legal position. A judge is not required to give reasons, following a voir dire, why the evidence of a confession has been admitted. Indeed, judges are generally encouraged not to do so. Exactly the same will apply following, as in the present case, a renewed application to have the evidence excluded. Quite apart from any other consideration, if reasons are given these may leave in the minds of many of those who are on trial a perception of bias on the part of the trial judge who, having rejected the defendant's side of the story, then goes on to try the case on the general issue, with or without a jury as the case may be. Coming back to the point which is made by the Applicant, the judge correctly chose not to give her reasons for rejecting defence counsel's renewed submission that the confession should be excluded.

20. There are other matters raised which are of less significance than those covered in this judgment. Today, the Applicant added in a number of ways to the points he had effectively set out in his written grounds. There is no need to deal with these other points as none of them could have affected the outcome of this application.

21. We have been unable to find any merit in any of the matters raised and, accordingly, the application is dismissed.

Representation:

Miss Anna Y.K. Lai, S.G.C. for D.P.P./Respondent

Applicant in person.