HKSAR v. Lam Chi Chung

HCMA000809/2001

HCMA809/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 809 OF 2001

(ON APPEAL FROM SPCC 2631 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 20 November 2001

Date of Judgment: 23 November 2001

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J U D G M E N T

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1.This is an appeal against conviction only.

2.The appellant was convicted after trial of an offence of possession of dangerous drugs, being fragments of a tablet of "Fing Tau" or a "head shaking" pill.

3.The facts as accepted by the magistrate were that during a plain clothes police raid on the "Jordan 17 Disco" ("the disco) in Temple Street in Yaumatei, the appellant was seen to be holding a tissue packet. When that was searched the drug was found and the appellant was arrested.

4.The appellant's substantive ground of appeal is that the magistrate erred in accepting the evidence of the undercover officer PW1 who found the appellant in possession of the drugs in the tissue packet.

5.The appellant firstly says the evidence of PW1 was inherently improbable and should have been rejected.

6.That evidence was that PW1 had seen the appellant in the disco holding the tissue packet. During his evidence PW1 apparently described the appellant as holding the tissue packet in his fingers, so it was plainly exposed.

7.The appellant says such evidence was inherently improbable because at the time PW1 saw the appellant the lights of the disco had been turned on and the police party had announced their presence. The appellant says it would have been inconceivable that he would hold the tissue packet in the open as described by PW1 if it in fact contained drugs.

8.The appellant's case in this regard was that he had never been holding the packet of tissues, but that they had been found on the floor nearby him and were not his.

9.The learned magistrate was plainly aware of the issues which arose in this regard on the evidence. He said:-

" PW1 demonstrated how the defendant held the tissue plastic bag in question. The defendant was described as holding in his left hand the tissue plastic bag between his left thumb and index finger with the majority of the tissue plastic bag exposed. The defendant's left arm was bent at 90 degree. The defendant was standing behind a bar table where there was no seat or stool.

............................Defence counsel suggested that PW1 picked up the tissue packet from the floor and assumed that it was discarded by the defendant, so he asked the defendant about it. Defence (counsel) suggested that PW1 took the defendant to the dance floor to threaten him. PW1 denied all these allegations."

10.It was suggested that the learned magistrate even if aware of the issue had not, in accepting the evidence of PW1 and in rejecting the appellant's case, properly considered the question of the inherent implausibility of PW1's evidence. In my view that is plainly not so.

11.In his statement of findings the learned magistrate said in this regard:-

"........... PW1 who was in plainclothes with warrant card hung from his neck, moved amongst the crowd of people in the disco. PW1 found the defendant suspicious in a close distance. PW1 had to be quick in his action. PW1's fast action successfully stopped the defendant before he could discard the drugs. ............(and later) I found the evidence of PW1 as to how he approached and questioned the defendant was logical and reasonable. Upon interception, the defendant was still trying to evade detection by putting up an excuse that the tissue paper inside the tissue plastic bag that he was holding contained phlegm. ........................"

12.Far from the magistrate accepting that the defendant had simply stood there holding a packet of tissue papers, without more, in his hand so that it could easily be detected by the undercover police officer, he had plainly accepted that the defendant had, when approached by the police officer put up an excuse as to what the plastic bag contained. It is for that reason that the magistrate found the evidence of the undercover officer plausible as to how he had first become suspicious of the defendant holding the tissue paper.

13.The appellant goes further however and says that the inherent improbability of PW1's evidence is underlined by his assertion that once the drugs were found, after arrest and caution, the appellant admitted they were a residue from his own consumption, but that even though that admission was soon after recorded by PW1 in his note book, the appellant refused to sign the entry. The appellant's case was that he had made no such admission and that was why his signature was not on the entry in PW1's note book. He further asserted in his evidence that PW1 had not cautioned him nor told him he was under arrest.

14.The learned magistrate was again fully aware of the issues arising out of this area of evidence A voire dire had been held to determine the admissibility of the verbal admission of the appellant. Obviously the prosecution did not seek to adduce the note book entry itself.

15.During the voire dire, and again during the course of the general issue the magistrate was perfectly aware that the fundamental issue was one of the credibility of PW1 and that the Defence case was that the appellant had been "framed-up" by PW1.

16.The question of why the appellant had not signed the note book entry of PW1 recording his admission and what weight the magistrate felt appropriate to attach to this aspect of the evidence was never specifically addressed by the magistrate in his statement of findings, it is true. But in my view that particular aspect of the evidence was but one part of the larger issue of the credibility of PW1 and as to whether there was any possibility of a "frame up" as alleged by the appellant.

17.The magistrate was not obliged to address specifically every issue which arose in the course of evidence. He addressed the fundamental issues of the credibility of PW1 and of the appellant's assertions of a "frame up". In my judgment that was sufficient.

18.It may be that on occasion a specific issue is of such importance to the resolution of a trial that a failure by a court to make any specific finding in respect of it or to provide reasons for any such finding, would be such as to render a conviction unsafe.

19.But in my judgment this was not such an issue. It was merely one of a number of issues relating to the more fundamental issues I have referred to and which in my view the magistrate thoroughly and adequately dealt with.

20.The appellant also argues that the magistrate appears to have misunderstood an important part of the evidence. This complaint arises from that part of the Statement of Findings where the magistrate said:-

".....The defendant said that after PW1 framed him of the possession of the drugs, PW1 had left him and walked away to talk with the foreigner officer. In this juncture, he told his friend, Mr. LAU that the police wanted to frame him. He said PW1 subsequently returned and pulled him out from the crowd in order to take him away. I disbelieved such version. It was affront to common sense that PW1 would leave him alone and walked away after he was found in possession of dangerous drug.

21.Mr Yu for the appellant says that is a misunderstanding of the Defence case at trial which was to the effect that PW1 had first found the tissue containing drugs in the vicinity of the appellant and had then walked off and spoken to another officer before returning to the appellant and accusing the appellant of being the owner of the drugs and of then proceeding to "frame him up".

22.I don't think the learned magistrate did mistake the evidence. Earlier in his Statement of Findings he had thoroughly and in some details summarised the defence case. In that regard he said this:-

" ...........The defendant walked back to his table 22 which was close to the dance floor. His friends were also around the table. About a few seconds after he had returned to his table, PW1 put a hand on his hand and picked up one green tissue paper packet from the floor at his left front. When asked about what was inside the packet, he said he didn't know. PW1 opened the packet and found 2 tablet fragments. PW1 asked him if they belonged to him. He replied that they were not his. He believed that his friends could hear the conversation.

The defendant said that PW1 had neither declared arrest on him nor cautioned him. He was then taken to the other end of the dance floor and he was threatened by PW1 there. PW1 asked him to admit, if not he would be beaten up back in the police station. He told PW1 that the stuffs were not his. PW1 walked away to talk with a Westerner. Subsequently, he did not know where PW1 had gone. there was then an announcement asking all persons to go to the dance floor. By that time, he saw his friend, LAU Chi-hang at his left. When his friend asked him what had happened, he told his friend Mr LAU that the police wanted to frame him. At this juncture, PW1 came back and pulled him away from the crowd of people."

23.The learned magistrate dealt with this aspect of the defence evidence in considerable detail. He was perfectly aware that the defence case was that the drugs were found only in the vicinity of the appellant and not in his possession.

24.In the complained of part of his statement of findings the learned magistrate is not suggesting that the appellant's case was that the appellant had possession of the drugs, nor is he suggesting that he, as a tribunal of fact, had already found the appellant to be in possession of the drugs. What the learned magistrate plainly meant is that the appellant's version of events to the effect that PW1 had already told him on the dance floor to admit possession and therefore targeted the appellant for a "framing-up" exercise, which at the least showed PW1 suspected the appellant of having possessed the drugs, sat implausibly with the further evidence given by the appellant that, following that, PW1 then walked away to talk to a foreign police officer and left the appellant in the crowd on the dance floor.

25.That was a consideration and a finding open to the magistrate on the evidence in this case.

26.The final complaint made by the appellant of his conviction is that the learned magistrate wrongly took into account evidence that the appellant failed to complain to various individuals that he was being framed up.

27.The appellant says the learned magistrate erred in law by, effectively, drawing adverse inferences against the appellant as a result of the appellant remaining silent.

28.In his statement of findings the learned magistrate said this:-

" ......... If the officer really framed him, and he would certainly protest against it at the scene at least by making a complaint to the senior officer there. The defendant was not alone there, he had his friends, including Mr. LAU Chi-hang standing beside him at the time of interception. There were many occasions or opportunities for the defendant to raise any complaint or protest, particularly of being framed. He confirmed that the police had not said or done anything to him at the police station. I considered that he could complain to any police officers in the police station. He could raise the complaint to his sister over the phone or whether he first saw her after he was bailed out. (After that) , he should (no longer be ) in a frightened state."

29.Mr Yu during his argument before me adopted a line of authority that can be best summarised by the recent case of HKSAR v. Del Carmen [2000] 3 HKC 431 where Stuart-Moore V.P. said:-

"Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way."

30.Mr Yu argues that effectively, and particularly where the magistrate appears to place weight upon the appellant's lack of complaint to police officers, the magistrate in his reasoning has offended against this principle.

31.I must say that there are some parts of the learned magistrate's statement of findings which at first sight appear to suggest a finding by the magistrate that if the appellant's defence of a "frame-up" were true he would have raised it with others, including senior police officers, prior to trial.

32.There is no doubt that an adverse finding against a defendant because he has exercised his right of silence, or at least said nothing when spoken to by police, is something which in general principle is prohibited.

33.But equally, as happens daily in our courts, a defendant's version of events can be challenged by comparing it with the defendant's reaction at the time of the alleged events. A common example of that would be in circumstances where a defendant challenges an admission on the basis that it has been beaten out of him, but makes no complaint to any doctor or independent police officer, such as a duty officer, or members of his family who he is contact with immediately after the beating is alleged to have occurred.

34.Such evidence is admissible and relevant as showing an inconsistency between the defendant's behaviour at the time and what he says happened. There may well be occasions when the border line between these two principles of evidence becomes somewhat blurred.

35.But in the present case the magistrate was obviously approaching this evidence on the basis of it being relevant as to showing an inconsistency between the appellant's reaction at the time of the events and what he asserted happened at that time.

36.That is a different matter to using against the appellant his silence in the face of police enquiries.

37.The evidence relied upon by the magistrate in this regard was, accordingly, admissible for the purpose of comparing the appellant's reactions at the time to his assertions as to what had happened. That was the only use the magistrate made of that evidence and he was entitled to take it into account in the way he did.

38.One final aspect of this appeal is that, although not specifically pleaded in the grounds provided to the court, Mr. Yu raised objection to the magistrate's statements made at the end of the voire dire in determining the special issue. In his Statement of Findings the magistrate said this as to his determination at that time:-

" I had carefully considered all the evidence and counsel's submission, I found that if the admission had ever been made, it was made voluntarily by the defendant. So I ruled in the alleged oral admission. I did not exercise my residual discretion to exclude it, because there was no reason for me to do so. As to whether the defendant had made that alleged oral admission or not, I had made it clear to all parties that I had not yet made up my mind at that stage. I said that it should be left to the end of the case.

39.Mr Yu complained that the procedure followed by the magistrate in that regard was wrong. He said before me that the magistrate should have made his determination, as to whether the admission in fact had been made or not, at the time that he made his ruling on the special issue. That cannot be right. That is a finding of fact which should let be left to the general issue. The ruling by a magistrate or any other tribunal of fact as to the admissibility of oral or other admissions, so far as the special issue is concerned, goes only to the voluntariness and the admissibility of those admissions or any such admissions which may subsequently be found to have been made.

40.The separate question as to whether or not an admission was made, or whether for example a recorded cautioned statement was fabricated or not, is something which relates to the general issue. In no circumstances could the tribunal of fact arrive at a finding which is peculiar to the general issue in the course of dealing with finding of voluntariness and admissibility which specifically relates to the special issue.

41.For the above reasons the appeal against conviction is dismissed.

Representation:

Mr W D Moultrie, S.G.C. of the Department of Justice, for the Respondent.

Mr Selwyn Yu instructed by the Legal Aid Department for the Appellant