HKSAR v. Wong Shui Fat

CACC000227/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 227
(Criminal)

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

Coram: Hon. Nazareth, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 11 December 1998

Date of delivery of judgment: 11 December 1998

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

J U D G M E N T

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

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted in the District Court before Judge Davies of trafficking in a quantity of dangerous drugs. This was 20.94 grammes of a mixture containing 10.01 grammes of heroin hydrochloride. From the outset of the trial the Applicant had claimed that these dangerous drugs were for his own consumption and that he was prepared to plead guilty to possession of the dangerous drugs. This was not however accepted by the prosecution. The charge of trafficking in the dangerous drugs was proceeded with and he was convicted of this.

2. The facts of the case as presented by the prosecution were that in the evening of the 1st November 1997 two police officers in plainclothes observed the Applicant walking up some stairs at 56, Choi Hung Road, Kowloon. As they approached the Applicant he changed direction and walked down the stairs. The officers approached him and revealed their identity. According to the officers they asked the Applicant where he lived and he replied the Fu Shan Estate. They undertook a search of his body and found a cylindrical shaped container concealed by the jeans he was wearing. The officers asked what this was. According to the officers the Applicant said, "Ah Sir, please give me a chance. I take this upstairs for someone only to make money."

3. The Applicant was arrested and taken back to Wong Tai Sin Police Station where PC48019 one of the arresting officers prepared a statement to post-record what the Applicant had said at the time he was arrested. PC48019 administered a caution and the Applicant made a statement which included the admission earlier referred to. Thereafter the officer put a series of further questions to the Applicant to clarify the statement.

4. A voire dire was conducted to determine whether this post-recorded statement should be admitted as evidence.

5. In his Reasons for Verdict the Judge had this to say about the admissibility of this post-recorded statement.

"There was a trial on the special issue of voluntariness of the alleged oral admissions made at the scene and of the record of interview taken from the defendant at the police station.

Having considered all the evidence relevant to this issue and the submissions of counsel, I was satisfied that the oral statements allegedly made to the police officer after he had cautioned the defendant at the scene were voluntary and admissible. I was satisfied also that the contents of the written record of interview were voluntarily made by the defendant. There were some breaches of the rules and directions for the questioning of suspects and the taking of statements, but I was satisfied that these were not such that I should exercise my discretion in excluding the whole or part of this record.

It was submitted by counsel for the defendant that the failure to re-caution the defendant before he was asked to confirm the accuracy of what took place at the scene between him and the arresting officer prejudiced the defendant's rights. I felt there was no prejudice to the defendant in this, particularly as he was reminded of the fact that he had been cautioned at the scene and told only to sign if he agreed the contents.

Also, it was submitted that the defendant should not have been questioned after being told he might be prosecuted for the offence of trafficking in dangerous drugs. I took the view that the questions were quite fairly put to the defendant and arose out of what he had said at the scene. I felt they came within the exceptional circumstances allowing such questions, that is, to explain possible ambiguities.

The statement taker had clearly made a mistake in the declaration he requested the defendant to write at the end of the record. It should have been the declaration conveniently printed out on the first page of the record. However, the actual declaration dictated by the officer was little more than the normal caution and had no bearing on acknowledging the accuracy of the record.

I adopt defence counsel's description of the record taking as 'sloppy work'. I do not, however, accept that the absence of the correct declaration is sufficient in itself or combined with the other matters highlighted to call for the exercise of my discretion to exclude the record.

I reiterate that I considered the evidence of the officer and the record to substantially reflect that it was obtained fairly and was given voluntarily by this defendant who was well aware of what he was being asked and what he was saying to the officer."

6. It is pertinent to add that the Applicant gave evidence on the voire dire. He claimed to be suffering from drug withdrawal symptom and said that the officer had induced him to make the statement by saying that if he signed he could be released on bail. The Judge rejected this testimony.

7. The part of the statement which was excised by the Judge was the admission allegedly made before the caution was administered. This was not a matter of any great moment as the Applicant made a similar admission after the caution had been given.

8. The Applicant also gave evidence that he had been stopped by the officers on the evening in question. He went on to say that when the dangerous drugs had been found he had told the officers that the drugs were for his own consumption. He intended consuming them at this home which was at 56, Choi Hung Road. He denied saying that he lived at Fun Shan Estate or that he was delivering the dangerous drugs to another person in the building. The Applicant also called a witness who gave evidence to the effect that she believed that the Applicant lived at 56, Choi Hung Road with his wife.

9. The Judge rejected this evidence and gave reasons why he was satisfied at the appropriate level that the Applicant was guilty as charged.

10. There were two main grounds of appeal.

11. The first related to the admission of the cautioned statement as evidence. Mr. Wong for the Applicant specified in detail the breaches of the rules and directions issued by the Secretary for Security.

12. These can be summarised as follows:

"(a) failure to caution after the bags of suspected dangerous drugs were found;

(b) failure to caution at the beginning of the interview at the police station;

(c) failure to caution when the Appellant was invited to sign on the Record of Interview to indicate agreement to the course of arrest;

(d) asking of further questions after the Appellant had been told that he would be prosecuted for the offence for which he was arrested; and

(e) an inappropriate ending certificate was used."

13. It is evident both from the Reasons for Verdict and the Judge's ruling on the voire dire which is at p.67 of the record that the Judge was mindful of the breaches which had occurred but was nonetheless satisfied both that the statement had been voluntary and there had been no unfairness to the Applicant. It should be observed that the Applicant's signature was appended to the statement in twenty-five places. In these circumstances and on the material which is available we do not consider that grounds have been made out to justify us in interfering with the way in which the Judge dealt with this matter. This ground fails.

14. The 2nd ground of appeal contains a detailed complaint that the Judge in the general issue failed to sufficiently consider the defence's evidence which supported the Applicant's contention that the dangerous drugs were for his own consumption.

15. There is nothing in this ground. It is apparent from the Reasons for Verdict that the Judge has given careful consideration to the case which was being advanced by the defence. The simple fact of the matter is the Judge for the reasons he gave rejected the Applicant and his witness's testimony. He also accepted the evidence of the police officers which clearly included the admission made by the Applicant. We are not retrying this case. The Judge was entitled to make the findings he did.

16. This application is dismissed.

Representation:

Mr. Albert Wong, S.G.C. (D.P.P.) for Respondent

Mr. Wong Po-wing assigned by D.L.A. for Applicant