HKSAR v. Fan Koon Hung

CACC000020/1998

CACC 20/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 20 OF 1998

(ON APPEAL FROM HCCC NO. 204 OF 1997)

---------------------------

Coram: Hon Nazareth V-P, Stuart Moore V-P and Keith JA in Court

Date of Hearing: 7 September 1999

Date of handing down Judgment: 15 November 1999

----------------------

J U D G M E N T

----------------------

Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Fan Koon-hung, was convicted before Deputy Judge Lugar-Mawson (as he then was) sitting with a jury on 19 December 1997 on three counts. The first count was of trafficking in dangerous drugs on a staircase in Block 8, Ho Man Tin Estate on 11 April 1997. The dangerous drug was 1,740.30 grammes of a mixture containing 1,489.84 grammes of heroin hydrochloride. The second count was of resisting two police officers in the due execution of their duty at the same place and time. The third offence was of trafficking in dangerous drugs at about the same time at Room 321, Block 8, Ho Man Tin Estate. The dangerous drug was 25.93 grammes of a mixture containing 13.37 grammes of heroin hydrochloride.

2. The facts are quite simple. The applicant was stopped by the police on the staircase of Block 8 of Ho Man Tin Estate between the first and ground floors early in the morning of 11 April 1997. PC21062 (PW1) produced his warrant card and said "police". The applicant pushed the constable and attempted to flee down the stairs in the process breaking free from the attempts of Detective Constable 12266 (PW3) who tried to stop him. In doing so, he fell down to the lobby still clutching a blue and white plastic bag which he had in his hand. He appeared to have been injured in the fall and presumably was in pain for some time thereafter. He was then caught by the police. Five blocks of suspected dangerous drugs were found in a plastic bag he had been carrying, some of which were inside another blue and while plastic bag. It was the prosecution case that he admitted that they were "dangerous drugs". These drugs formed the subject of the first count. He was then arrested. He was further searched and the key to his flat, No. 321, on the first floor and about $11,800 in cash were found on him. He was taken straight up the stairs to Flat 321. His mother and a younger brother were inside.

3. The prosecution case was that inside the flat, shortly after he was taken in, the applicant of his own volition and without any prompting said to PW3 that they need not bother to search the flat any further and there was half an ounce of stuff under his mother's bed. The police looked under the applicant's mother bed and inside a paper bag they found the drugs which became the subject of the third count. The applicant and his mother and two younger brothers (the second of whom had subsequently arrived) were taken to Ho Man Tin Police Station.

4. The applicant's case was that the police framed him by planting the dangerous drugs. He was never in possession of the two blue and white plastic bags. He was "jumped" from behind while on the stairs by people who did not say who they were. He was deliberately pushed down so that he fell to the lobby. While lying on the floor in the lobby, he was kicked. He made no verbal admissions there or at any time. He claimed that $14,800 was found on him, not $11,800.

5. He said also that there were no drugs in the flat but that they were brought in by a European police inspector, who was accompanied by an elderly Chinese police officer who acted as interpreter. The latter was carrying the blue and white bag.

6. The prosecution sought to adduce evidence that the applicant had made the admissions mentioned, in the lobby and in Flat 321; also the post-recording (Exhibit PP33) of them later that morning at Ho Man Tin Police Station and the record of an interview (Exhibit PP34) made in the evening at the Queen Elizabeth Hospital custodial ward.

7. The judge held a voir dire and excluded the written post-recording of the oral admissions (Exhibit PP33) and the record of interview (Exhibit PP34) but admitted evidence of the oral admissions made in the lobby and Flat 321.

8. This brings us to the first and second grounds of appeal.

9. Mr John Haynes who was brought into the appeal at a late stage has with our leave introduced three new grounds. He pursued the first and second of the original grounds in the following way. He referred first of all to the judge's ruling on the voir dire. It is of assistance to see what the judge said. His entire ruling was in the following terms:

"I am not satisfied that the two documents, Exhibits PP33 and PP34, which are the so-called post recording made in the morning of 11 April of this year at Ho Man Tin Police Station and the record of interview made in the evening of 11 April at the defendant's bedside in the Queen Elizabeth Hospital Custodial Ward were made by the defendant voluntarily. They will therefore be excluded from evidence at the defendant's trial.

However, as to the oral admissions allegedly made by the defendant in the Ground Floor lobby of Block 8, Ho Man Tin Estate, Kowloon, and in Flat 321 of Block 8 of that estate, I have, in arriving at my decision, had regard to the exposition of the law on these matters set out in the case of Thongjai and Anor v R [1997]2 HKC 109, and R v Chu Chi-kwong [1995] HKCLR 327.

The question of whether these admissions were said by the defendant is one for the jury and not I. I am satisfied from the evidence which I have heard in the voir dire proceedings that, if they were said, the defendant said them voluntarily. The prosecution may, therefore, lead evidence of their being said before the jury."

Mr Haynes characterised that ruling as enigmatic. It has to be said that it does not expressly reveal the reasons for the ruling. However that may be, Mr Haynes's submission in substance is that the admission of the oral admissions is so inconsistent with the exclusion of the post-recording by the same policeman of those very admissions, that it cannot stand. The evidence of the oral admissions came from the very officers whom the judge was not prepared to believe in relation to the post-recording. The verbals and the aftermath were all part of the episode and must stand or fall together; they are inextricably tied together. Having ruled out the recording, he ought not to have admitted the verbals. In support of that submission, Mr Haynes relies upon a number of facts. These can be described quite briefly. The applicant's allegations of being assaulted in the lobby have already mentioned; there was some support for that in the evidence of two neighbours. The applicant's brother claimed that the European police inspector mentioned earlier, told the applicant to admit that the bag belonged to him and if he did not, all the family members would be taken to the police station, though the applicant himself had said earlier that nothing had been said about what would happen to his family before he was taken to the police station. As for what happened at the police station, Mr Haynes pointed out that the applicant's solicitor arrived at 9.30 but he was not given access to the applicant until 11.30 and that meanwhile a written interview was conducted. Furthermore, the solicitor asked to be called if the applicant was to be questioned and left his telephone number, but nevertheless at about 7.50 pm, the police recorded the interview with the defendant in the custodial ward of the Queen Elizabeth Hospital without notifying him.

10. Mr Haynes submits that the police in relation to the post-recorded interview were clearly operating in bad faith. However, they declined to acknowledge that to the judge but resorted to a whole lot of minor excuses. The judge, Mr Haynes submits, must have rejected the police's evidence pertaining to the post-recorded statement and the record of interview. In that light it was wholly inconsistent of the judge to have accepted the evidence of PW1 as to the admissions.

11. In response, Mr Bruce SC, who with Mr Vincent Wong, appeared for the Director of Public Prosecutions, submitted that the judge not only must have had all the evidence in mind, but actually said that he had all the evidence in mind. In determining whether the oral admissions, if made, had been made voluntarily, he could not have overlooked the facts on which he had decided that he could not be sure that the post-recorded statement and the record of interview had been made voluntarily. He did not have to believe all the witnesses or all the evidence of each witness. Mr Bruce's principal argument was that the rulings were reconcilable because of the different allegations made by the applicant (a) at the scene and (b) at the police station. As for (a), the applicant alleged that at the scene he had assaulted. As for (b), the applicant alleged that at the police station he had asked for, but had been denied, medical attention and access to a lawyer, and that he had been threatened with the arrest of his family and the loss of his Housing Authority home. Accordingly, Mr Bruce contended that the rulings could be reconciled on the basis that the judge was sure that the applicant had not been assaulted at the scene, but was not sure that the applicant had not been denied legal or medical help at the police station or that he had not been threatened there.

12. It seems to us at the end of the day that although not necessarily required to do so, it would have been helpful of the judge to have stated his reasons for accepting the police evidence as to the admissions at the scene while excluding the post-recording of the admissions and the record of interview. However, we do not think that the judge's failure to give reasons for his rulings necessarily required us to treat his rulings as irreconcilable. The procedural deficiencies associated with the post-recording and the record of interview could very well have been the primary cause of the exclusion of that evidence by the judge. Those procedural deficiencies do not in any way taint the evidence of the earlier oral admissions. That a policeman denies a solicitor immediate or early access to his client in breach of established procedures does not necessary mean that his evidence of admissions made to him earlier has to be rejected, in the absence of some reason to justify that. In the end, we do not think that the admission of the oral admissions was inconsistent with exclusion of the other evidence. We accordingly reject the foregoing submissions made on the first two grounds.

13. Mr Haynes did not pursue the third ground.

14. The fourth ground was that the judge further erred in law in permitting reference to be made during the trial to the money in cash found upon the person of the applicant at the time of his arrest.

15. There is evidence that the police had found $11,800 in the possession of the applicant. Indeed, the applicant made allegations that the significantly larger sum of $14,800 was seized from him by the police which could not have been a suggestion other than that the police improperly deprived him of the difference. Mr Haynes submits that it is now well established that a careful direction should be given upon the use of evidence of money found upon an accused in such circumstances. If the evidence about the money had been relied on by the prosecution to establish the applicant's guilt, he agreed with Mr Haynes that the judge should have given the appropriate direction on how that evidence should be evaluated. That was conceded by Mr Bruce. However, this was not a case in which the prosecution was relying on the money to establish the applicant's guilt. It was adduced, without objection from the defence, simply as part of the narrative relating to what the applicant had in his possession at the time of his arrest. It is true that the applicant was cross-examined about the money, but that only went to the applicant's credibility, i.e. whether he had been telling the truth in his examination-in-chief that the money was for medical supplies. We accept that one course open to the judge in these circumstances was to direct the jury that the evidence was relevant only to the applicant's credibility, and that it was not being used to establish the applicant's guilt. However, it would not have been wrong for the judge to decide not to give such a direction, bearing in mind that more damage might have been done to the applicant's case in the long run by such a direction, because it would have highlighted the evidence. We accordingly reject ground 4.

16. Proceeding then to ground 5, this was that "the trial Judge's directions as to the absence of fingerprint or trace evidence linking the applicant to the drugs tended to undermine the applicant's defence. These directions were potentially misleading and inappropriate in a case where the defence was fabrication and planting".

17. Mr Haynes's submission here boils down to this. In HKSAR v Au-yeung Fu [1998]2 HKC 81 which he relies upon, it was held that "in the absence of any admissible evidence to link the applicant to the flat where the drugs were found, it was even more important for the judge to point out to the jury such total lack of physical link. The way the evidence of the fingerprints had been dealt with minimised the point. [Also, that] it was for the jury to decide whether they would attach any significance to the negative findings as to traces of drugs on the applicant or his clothing. It was not for the judge on this important matter of fact to direct them that it proved nothing". Mr Haynes complains about a passage at pp. 24 and 25 of the summing-up. There the judge reminded the jury that defence counsel had rightly pointed out there was no evidence other than that of the three police officers as to what was found in the applicant's possession. There was nothing else which connected the applicant to the heroin, nor any fingerprint evidence. He continued:

"The lack of fingerprints, members of the jury, may not be quite the vital point [defence counsel] contended for. It's known that certain surfaces yield very poor fingerprint impressions and the comparison criteria between found fingerprints and a suspect's control fingerprints are very exacting - and it's only right that they should be. So I ask you not to speculate about this matter, members of the jury. The simple fact, in this case, is that there - is no fingerprint evidence connecting the defendant with the heroin - either with the heroin itself or its wrappers, or the bags the prosecution say it was found in."

Mr Haynes complains that the jury should not have been told defence counsel's point was not as good as it seemed.

18. What was held in Au-yeung Fu was held in the context of the particular circumstances there. We do not think that here the same can be said or that it similarly applies. On the contrary, looking at the entire passage itself, and also in the context of the entire summing-up and the circumstances here, we do not think that the summing-up was deficient or prejudicial. We find nothing in this ground.

19. We turn to ground 6 which was framed in the following way:

"The trial Judge failed to consider whether to exercise his discretion to exclude the 'verbals' on the basis that their introduction might create unfair disadvantage to the Defendant and unfair advantage to the police. The trial Judge did not recognise that one consequence of his ruling was that the defendant's proper opportunities for demonstrating bad faith and for attacking the credit of the police team would be severely handicapped. The 'verbals' would go before the jury untarnished by the evidence of the subsequent police 'mismanagement' of the Defendant (see E.6.p316S). In the circumstances of this case the direction at p22D is a material misdirection."

The direction in question was as follows:

"As a matter of law, I can tell you that an admission or a confession by a defendant can be the sole piece of evidence which inculpates him and is sufficient, at law, to convict him. There's no requirement, at law, that the confessions be corroborated, - which means confirmed by independent evidence. There's certainly no requirement, at law, that they be written down by a police officer." (Emphasis supplied)

20. This ground focuses on two separate issues: the exercise of the discretion and the later direction to the jury. As for the exercise of the discretion, Mr Haynes's argument was that, having ruled that the oral admissions, if made, were made voluntarily, the judge failed to consider exercising his residual discretion to exclude them. Had he applied his mind to the exercise of that discretion, he would or should have ruled that the oral admissions should be excluded - on the ground that, having ruled that the post-record and the record of interview were inadmissible, the judge was preventing the defence from using them to attack the oral admissions. We reject this argument. It was still open to the defence to rely in the trial on the post-record and the record of interview if it wanted to, even if the prosecution had been prevented from relying on them. Thus, even if the judge had not addressed the exercise of his discretion, had he done so the only ground on which it is contended that he ought to have exercised his discretion to exclude the oral admissions would have failed.

21. As for the later direction which the judge gave to the jury, Mr Haynes complains that the direction, particularly the sentence emphasised, gives the impression that it was wholly unexceptional to have oral admissions that were not recorded in writing. It is true, as Mr Haynes says, that where an accused person denies making an admission or inculpatory statement, to challenge it as involuntary may prove an invidious task. And so it may have been here; but we cannot see that the summing-up can be faulted on that account. We reject the submission that the direction at p.22D was a misdirection.

22. The final ground was that the conviction of the applicant by a majority of the jury on evidence which included wholly unacknowledged, unsigned and uncorroborated oral admissions allegedly uttered by a man in physical pain is unsafe and unsatisfactory in the sense that the evidence, including that of the two bystanders, leaves a lurking doubt, presumably about the applicant's guilt. In support of this Mr Haynes relies particularly upon the evidence of the two neighbours who gave evidence that they saw the applicant being assaulted in the lobby. However, that is a matter that has to be considered not on its own but in the context of all the other evidence and the circumstances. The issues were properly left to the jury by the judge in his summing-up. We are not left with any lurking doubt about the applicant's guilt.

23. For the foregoing reasons, we do not think there is anything in the grounds of appeal to warrant interference with the jury's verdict. Leave to appeal against conviction is accordingly refused.

Representation:

Mr John Haynes (M/s Chong, Leung & Co) for the Applicant

Mr A.A. Bruce SC, SADPP and Mr Vincent Wong, SGC for Director of Public Prosecutions

Remarks:
On application by the Applicant to the Appeal Committee of the Court of Final Appeal: Leave to appeal is dismissed. Please refer to FAMC000031/1999.