HKSAR v. Wong Po Yan
Read the full judgment text of CACC 136/2022 on BabelCite. This Court of Appeal judgment was delivered on 23 April 2024.
1. The appellant was convicted after trial by Deputy District Judge Wong Sze-cheung, Colin (the trial judge) of one count of “trafficking in a dangerous drug” and was sentenced to immediate imprisonment for 40 months. The appellant applied for leave to appeal against conviction. On 12 April 2023, leave to appeal was granted by a single judge [1] on two [2] out of a total of five grounds of appeal advanced by the appellant.
Cited by 1 case · Cites 3 cases
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[English Translation – 英譯本] CACC 136/2022, [2024] HKCA 282 On Appeal From: [2022] HKDC 751 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 136 OF 2022 (ON APPEAL FROM DCCC 675 OF 2021) __________________ BETWEEN
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__________________ JUDGMENT __________________ Hon Andrew Chan J (giving the Judgment of the Court)： Introduction 1.The appellant was convicted after trial by Deputy District Judge Wong Sze-cheung, Colin (the trial judge) of one count of “trafficking in a dangerous drug” and was sentenced to immediate imprisonment for 40 months. The appellant applied for leave to appeal against conviction. On 12 April 2023, leave to appeal was granted by a single judge[1] on two[2] out of a total of five grounds of appeal advanced by the appellant. 2.The present case involves three defendants and two charges. The appellant is D2 in the present case. She and D3 face Charge 2. The particulars of the offence are that the duo, inside a private car bearing registration mark NH5762 (the Car) outside Shek Wai Kok Estate Shopping Centre, Shek On Street, New Territories, unlawfully trafficked in a dangerous drug, namely 7.95 grammes of a solid containing 6.99 grammes of cocaine. Prosecution case 3.The prosecution has called a total of 8 police officers to give evidence. 4.At around 7:20 a.m. on 30 March 2021, Police Constable 15985 (PW1), Police Constable 23394 (PW2) and Police Constable 11153 (PW3) arrived at Shek Wai Kok Estate. PW1 saw D1 wander outside an accessible toilet at Shek Wai Kok Estate. Subsequently, a car drove up to that toilet. D1 walked towards the front passenger seat of the Car. After D1 and D3 looked at each other, D1 got a white papery object through the car window and then turned round and left right away. PW1 intercepted D1 for a body search and found that D1 was holding some white tissue paper wrapping a transparent re-sealable plastic bag, which was suspected to contain dangerous drugs. After investigation, PW1 arrested D1[3]. 5.When PW2 approached the Car, he saw that the glove compartment inside was open and that the appellant who was seated at the driver’s seat and D3 in the passenger seat looked nervous, and then D3 closed the glove compartment in the Car. 6.PW3 searched the Car and seized a re-sealable plastic bag containing 24 plastic bags of crystalline solids in the Car’s glove compartment. Upon examination by a government chemist, it was confirmed that the 24 plastic bags contained a total of 7.95 grammes of a solid containing 6.99 grammes of cocaine (the dangerous drug in question)[4]. The average retail price of the dangerous drug in question in the month of the offence was HKD 11,392.35[5]. 7.After being cautioned by PW2, the appellant replied, “The dangerous drug is cocaine,”[6] and said, “I’m sorry, it is for selling to others to earn a little money.”[7] PW2 instantly wrote down the questions and the answers in a notebook and asked the appellant to sign. PW2 then arrested the appellant for the offence of “trafficking in a dangerous drug”. Under caution, the appellant said, “Since the family lives in poverty, I sell a little drug to earn some money. Give me a chance.”[8] 8.The appellant was subsequently escorted to Tsuen Wan Police Station. PW2 issued a “Notice to Persons in Custody” to the appellant in the police station. At the time, there was nothing special with the appellant’s mental state. Afterwards, PW2 made a post-record in front of the appellant. PW2 testified that the appellant did not appear to be not of sound mind on that day and denied that the appellant was unable to concentrate or had symptoms such as stomachache, nervousness, anxiety, hand tremors or shortness of breath and so on during the interview. 9.On the following morning, Woman Police Constable 15847 (PW4), Detective Sergeant 50576 (PW5), Detective Police Constable 17126 (PW6) and Detective Police Constable 18768 (PW7) took the appellant to her residence situated in Shatin for a house search. Upon completion, the whole group went to Tin Sum Police Station to conduct a video-recorded interview with the appellant. 10.Inside the Video Interview Room, PW4 issued a ‘Notice to Persons in Custody” to the appellant before conducting the video-recorded interview. PW4 said that she did not know that the appellant suffered from serious mental illness and depression, and denied that the appellant was unable to concentrate and nervous, and had anxiety and hand tremors at the time. 11.After the video-recorded interview had finished, the appellant, on the car journey back to Tsuen Wan Police Station, requested to first go to a unit in Chuen Lung Village, Tai Mo Shan for her to feed a cat because the cat had nothing to eat for one to two days. After weighing the circumstances, PW5 agreed to the request. 12.PW4 denied that their purpose of going to Chuen Lung Village to feed the cat was to fulfil an earlier agreement between her and the appellant, that is, if the appellant cooperated and made a confession, the police officers would grant her bail, return the Car to her, and allow her to go to Tai Mo Shan to feed the cat. Defence case 13.The appellant objected to the prosecution’s production of her oral confession, the post-recorded cautioned statement and the video-recorded interview as evidence in the present case. The appellant elected to give evidence on the special issue and called four expert witnesses to give opinion on her mental state. 14.In summary, the four expert witnesses’ testimonies and the medical reports stated that the appellant was a mental patient suffering from mood disorders, borderline personality disorder and depression on the day of the offence and during her detention. 15.The appellant testified that her mental state had been very poor without any improvement since she stopped receiving treatment from psychiatrists and clinical psychologists in 2017. During the investigation of the present case, the police had kept telling her that the facts of the case was not serious so she mistakenly believed that the police were sincere in helping her. 16.The appellant alleged that PW2 did not caution her at all at the scene of the crime, and that she did not make any verbal confession nor did she put her signature on PW2’s notebook. After arriving at the police station, PW2 never cautioned her. The appellant claimed that she had told PW2 that she and her mother were mental patients and that she had been seeing psychiatrists and clinical psychologists since 2014. After learning of her psychiatric history, PW2, however, did not arrange for the presence of an appropriate adult to accompany her in the post-recording of the cautioned statement. 17.The appellant said that she was suffering from stomachache caused by stress and was confused and feeling “dazed” during the post-recording and that she rested her head on her arms on the desk throughout. 18.The appellant went on to say that when she told PW2 that she did not know about the drugs in the Car, PW2 scolded her loudly and said she could not get away with it and even engaging a lawyer would not be of any help. Therefore, she gave up the idea of engaging a lawyer. PW2 said that although the appellant’s behavior was wrong, it was excusable and the judge would impose a lenient sentence. 19.The appellant also alleged that PW2 indicated to her that if she testified on D3’s criminal acts on that day, the police would: (i) return the Car to her immediately; (ii) not object to her bail; and (iii) ask the judge to be lenient with her. Had she not been induced and misled in such ways, the appellant would not have been willing to make the statement according to PW2’s version, copy out the declaration and sign it. 20.The appellant emphasized that PW2 did not read over the relevant contents of the notebook to her before she signed it, nor did he allow her to read it herself. The appellant also alleged that PW2 had not explained the “Notice to Persons in Custody” to her, nor did she read the contents of it. 21.In respect of the video-recorded interview, the appellant alleged that after PW4 had collected her from the detention room of Tsuen Wan Police Station, PW4 indicated that if she was willing to cooperate in making the statement and to give a clear account to the police of the circumstances in which D3 trafficked in the dangerous drug according to PW4’s version, the police would promise (i) not to tell her mother that she was arrested for trafficking in a dangerous drug; (ii) to ask the judge to be lenient with her; (iii) to return the Car to her; (iv) not to object to her bail; and (v) to let her return to her residence at Tai Mo Shan to feed the cat. 22.In light of PW4’s promises, the appellant indicated to PW4 that she would give a statement as PW4 said. Before the video-recorded interview started, the police did not arrange for the presence of an appropriate adult to accompany the appellant. Moreover, the confessions made by the appellant during the video-recorded interview were all made in accordance with the version that PW4 had taught her. The appellant said that PW4 had indicated that if she was unwilling to answer in the way as PW4 taught her during the video-recorded interview, the police would charge her and D3 with trafficking in a dangerous drug jointly, and would further go to the residence of her mother in Shatin for a house search and would not allow her to go back to her residence in Tai Mo Shan to feed the cat. 23.The appellant said that the reason why she had indicated that she did not need a lawyer in the video-recorded interview was that PW4 and PW2 had told her that it would not be of any help to engage a lawyer. PW4 never explained to the appellant the contents of the “Notice to Persons in Custody” which the appellant did not read herself, either. The appellant testified that while she was at Tin Sum Police Station, she was feeling dazed and nervous and had hand tremors and “dizzy spells”. 24.The appellant said that during the video-recorded interview, very often, it was only after PW4 had given an answer that the appellant responded by saying “yes”, because sometimes she could not clearly remember the answers that PW4 had taught her. Her voice was so low in the video-recorded interview because she was too nervous and she merely followed what PW4 said in providing the answers. 25.As far as the defence case on the general issue is concerned, the appellant elected not to give evidence, nor did she call any witnesses. On the general issue, the defence made it clear that the medical evidence on the special issue would not be relied on, but invited the court to either disregard or not to give any weight to the appellant’s confession. Grounds of appeal 26.The leave to appeal was granted on two grounds:
Discussion 27.Concerning the first ground of appeal, Mr Choy SC for the appellant mainly challenges the following passage in the trial judge’s Reasons for Verdict：
28.Mr Choy SC quoted that the Court of the Final Appeal said in Chau Ching Kay v HKSAR[9] that the prosecution has the burden of proof on the special issue and is required to prove beyond reasonable doubt that a confession statement was made voluntarily. The trial judge’s consideration on the issue of voluntariness can be divided into two stages: (1) whether there is any conduct on the part of the person in authority which is capable of constituting an inducement, that is, the act in question is sufficient to influence the defendant’s mind; and (2) whether the prosecution has proved beyond reasonable doubt that such inducement has no influence on the defendant’s mind. 29.Mr Choy SC took the view that the factors considered at the second stage included the state of mind of the defendant and the circumstances in which she was placed. Therefore, if the defendant suffered from mental illness, which made her more susceptible to inducements, the court should correspondingly consider with a lower standard whether such inducements had indeed had any influence on her. It was incumbent on the prosecution to prove beyond reasonable doubt that such inducements had no influence on the defendant even though her mental illness made her more susceptible to inducements. 30.Mr Choy SC also pointed out that the case of Wong Man Yi Mandy was concerned with the burden and standard of proof where “insanity” was a defence, and that the relevant discussion was related to the general issue, that is, whether the defendant was “insane” and in such severity that she was unaware of what she was doing, or even if she did know what she was doing, she did not know that what she did was wrong. 31.Mr Choy SC submitted that the imposition of a reverse burden of proof on the defendant would definitely undermine the defendant’s right to the presumption of innocence to some extent. As far as the special issue was concerned, if the prosecution wished to prove that the defendant was not influenced by insanity, the evidence on which it could rely was not limited to medical evidence. For example, the prosecution might call relevant witnesses, including the police officer who took the confession statement, or submit footage of the video-recorded interview, etc, to prove that the defendant was not influenced by “insanity”. Therefore, even if the defendant was uncooperative and refused to undergo medical examination, it did not mean that the prosecution could not prove the voluntariness of the confession statement. Based on the above, it would be inconsistent with the principle of proportionality to impose the reverse burden of proof in relation to the special issue on the defendant. 32.Mr Choy SC submitted that on the special issue in the present case, the trial judge, who relied on the legal principles for the general issue, clearly erred in law in placing the burden of persuasion on the appellant. It was unsafe for the trial judge to reach a finding that the appellant’s confession was not influenced by her mental illness based on the wrong burden and standard of proof. 33.In Chau Ching Kay, Chan PJ states that where it is alleged that a confession statement has been extracted by certain inducements, whether by words or conduct or by any express or implied promises, the trial judge has to adopt the following two-step approach: (i) the judge has to consider whether there is any conduct on the part of the person in authority which is capable of constituting an inducement, that is, something which is capable of influencing the mind of the accused; and (ii) if there indeed has been such conduct on the part of that person, the judge has to further consider whether the prosecution has proved beyond reasonable doubt that such an inducement had not influenced the mind of the accused. 34.In the present case, the trial judge was of the view that the prosecution bore the burden to prove up to the standard of beyond reasonable doubt regardless of whether it was on the general issue or the special issue. However, if the defence of “insanity” was raised by the defendant, regardless of whether it was a defence on the general issue or a ground of objection to challenge voluntariness on the special issue, the burden of proving the defendant’s “insanity” lay with the defendant in both cases. 35.The trial judge’s decision was not correct. 36.When a defendant claims that he makes a confession because of an inducement from a person in authority, it is established in Chau Ching Kay that the court has to take a two-stage approach to consider: (1) the onus of proof lies with the prosecution to prove that the person in authority has not performed any act capable of constituting an inducement and the standard of proof is one of beyond reasonable doubt; (2) if the prosecution fails to prove this point, that is, it is possible that the person in authority has performed an inducing or misleading act, then the prosecution bears the burden to prove beyond reasonable doubt that the act which constitutes the inducement has not influenced the mind of the defendant. 37.In Wong Man Yi Mandy, it is mentioned that when the defendant raises “insanity” as a defence of the whole case, the burden of proof will shift to the defence and the standard is one of on the balance of probabilities. 38.What the trial judge in the present case was required to deal with was the issue of whether the oral confession, the post-recorded cautioned statement and the video-recorded interview were admissible as evidence, which is different from that in Wong Man Yi Mandy. In criminal trials, the court has to make different decisions from time to time on the burden and standard of proof in cases involving disputes of different nature. Even in the same case, different burdens and standards of proof may be adopted at different stages depending on the issues in dispute between the two parties at the particular time. The Court of Final Appeal has clearly set out the burden and standard of proof of an inducement in relation to oral confessions, post-recorded cautioned statements or records of interviews. 39.The facts of Chau Ching Kay have their uniqueness, which involve an implied inducement or promise. According to the other authorities cited in the case, generally speaking, it is usually the arrestee who puts forward certain offers to the person in authority who accepts the former’s offers or whose conduct leads the arrestee into thinking that his offers have been accepted. The Court of Final Appeal clearly points out in the case：
In the present case, the trial judge did go through the first step. He was satisfied that the police officers had not performed any inducing or misleading conduct towards the appellant as described by her. He said as follows in paragraph 81 of the Reasons for Verdict：
In other words, regarding the issue of voluntariness of the appellant’s oral confession, the post-recorded cautioned statement and the video-recorded interview, the trial judge, after going through the first step as stated in Chau Ching Kay, ruled that no police officer had ever done anything to induce or mislead as alleged by the appellant. Therefore, even if the trial judge accepted the evidence of the defence expert witnesses’ opinions, that is, the appellant was suffering from mood disorders, depression and borderline personality disorder, and was impulsive and gullible, etc, it was not necessary for him to further consider the second step. It was unnecessary to consider what was raised by Mr Choy SC above concerning the issue that the appellant was more susceptible to inducements because of the above-mentioned mental conditions. 40.In view of the above, even if the trial judge has erred in dealing with the issue of the burden of proving the appellant’s “insanity”, the rulings on the voluntariness of the oral confession, the post-recorded cautioned statement and the video-recorded interview were not affected. The trial judge has made it clear that the prosecution had proved beyond reasonable doubt that the appellant had made the aforesaid confession voluntarily. Furthermore, the appellant elected not to give evidence on the general issue nor did she call any witnesses. Mr Wong SC, who represented the appellant at the trial, confirmed that in respect of the general issue, the appellant did not rely on the medical evidence concerning her mental health on the special issue. In the light of the foregoing, the first ground of appeal is unsubstantiated. 41.It is alleged in the second ground of appeal that the trial judge clearly erred in merely considering the internal guidelines of the Police Force, ie, the “Rules and Directions for the Questioning of Suspects and the Taking of Statements” and the “Notice to Appropriate Adults” before forming the view that there was nothing wrong with the police officers who did not arrange for an appropriate adult, because they did not notice that the appellant suffered from “insanity” or was mentally handicapped. Mr Choy SC also submitted that the appellant did suffer from mental illness and that the court should exercise its discretion to strike out the relevant evidence as long as it held the view that the appellant might have been influenced when making the confession. 42.Mr Choy SC’s submission in this regard seems to be established on an erroneous basis that people suffering from mental illness cannot be cured or recover. 43.The trial judge gave a clear account of whether or not discretion should be exercised in paragraphs 82 to 91 of the Reasons for Verdict. In short, the trial judge stated that when the appellant was arrested, she was driving. He was satisfied with what the police officers said, ie, when the appellant was under investigation, she did not lose control of her emotions and behaved normally. The appellant had never mentioned that she suffered from mental illness, either. Therefore, the police officers had no way of knowing if she suffered from mental illness. Moreover, the trial judge also said that it could be seen from the video-recorded interview that the appellant answered the police officer’s questions in a normal manner instead of just saying “yes” or “no” in reply. Therefore, it was accepted that the appellant was not influenced by mental illness during the interview. 44.Having considered the evidence of the witnesses of both parties, the trial judge was satisfied that there was no evidence that the appellant was under the influence of the symptoms of mental illnesses such as mood disorders, depression and borderline personality disorder during the interview, which necessitated the exercise of discretion to strike out the oral confession, the post-recorded cautioned statement and the video-recorded interviews as evidence. This is the finding of facts made by the trial judge. 45.We agree with the reference made by the trial judge in the Reasons for Verdict that the degree of mental illness or “insanity” may vary from patient to patient, and that not every person who suffers from mental illness is affected by it at all times without knowing what he or she is doing, or not knowing that his or her actions are wrong. As expressed by the trial judge, many people suffer from depression in Hong Kong, but these mild forms of depression do not affect the patients’ awareness of their rights in that they understand what they are saying in confession and know what is right and wrong. In other words, after hearing all the evidence, the trial judge was entitled to rule that the appellant was not influenced by mental illness at the material time. 46.The second ground of appeal is also unsubstantiated. 47.On the whole, there are insufficient merits and the appeal is dismissed.
Mr Wong Chun Hin, Senior Public Prosecutor, of the Department of Justice, for the respondent. Mr Edwin Choy SC and Ms Chloe Fu, instructed by Hon & Co., for the appellant. Translated by the Court Language Sectionof the Judiciary and vetted by Mr Justin Yuen, solicitor. |
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