HKSAR v. Hong May Ling

CACC000251/1997

IN THE COURT OF APPEAL

1997, No. 251
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J. in Court

Date of hearing: 5 November 1997

Date of delivery of judgment: 5 November 1997

Date of handing down reasons for judgment: 20 November 1997

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J U D G M E N T

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

1. The Applicant seeks leave to appeal against her conviction for trafficking in a dangerous drug. She was convicted of this offence after a trial before Deputy Judge Longley and a jury.

2. The particulars of the offence are:

"HONG May-ling, on the 2nd day of July, 1996 inside Room 108 of the King Dao Karaoke situated at the basement, Golden Centre, at the junction of Fuk Wing Street and Yen Chow Street, Shamshuipo, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 51.91 grammes of a crystalline solid containing 50.36 grammes of methamphetamine hydrochloride."

3. According to the prosecution case a police constable and a woman police constable saw the Applicant in the early hours of 2nd July inside the lobby of the King Dao Karaoke Bar. The police constable saw her go into Room 108. Another police constable joined them and they entered Room 108. The Applicant was sitting alone and had a brown bag next to her. The police officers identified themselves and searched her. Two plastic bags were found in the bag and when the officer asked what it was, the Applicant said 'Ice'. She went on to say that it was not hers. She had arranged to meet a man called Ah B and that her red car was parked outside.

4. Later after she was cautioned, she said that the 'Ice' was for her own consumption and asked to be given a chance. The woman police officer who was the only other officer present when the dangerous drugs were found gave similar evidence to the 1st police officer. The main disparity of significance in the evidence of the two officers was that the woman police officer did not give evidence to the effect that the Applicant had after being cautioned said that the 'Ice' was for her own consumption.

5. The Applicant gave evidence at her trial. Her evidence was to the effect that she had been a police informer and that she was being framed for this offence. Her explanation for this was that during the course of her activities as an informer she had given information which had resulted in another police officer being convicted of trafficking in dangerous drugs and sentenced to a lengthy of term of imprisonment.

6. According to her she runs a Beauty Salon. On the day of the incident one of her customers Mr. Lau came to visit her with a friend. During the course of conversation she had let it be known that it was her birthday the next day. Mr. Lau had then suggested that they should have a party and she nominated the King Dao Karaoke Bar as the venue. They had gone on there before her as she had to tidy up the shop before leaving.

7. She met Mr. Lau at the Karaoke Bar. He suggested that she should wait in Room 108 and she assumed that he had gone to organise a birthday cake or something of that nature. She ordered two drinks. In this connection there was some supporting evidence as the manager of the bar who was called by her as a witness was able to produce a bill which was consistent with this.

8. Shortly after this PC 52623 who was one of the officers earlier referred to entered the room and asked if she would be able to give some more assistance to the police. She said that she was unable to as she had not been in the dangerous drugs business for a long time. PC52623 then made a telephone call and shortly after this two police constables and a woman police constable arrived at the scene.

9. She was taken out to the street by the officers. She saw PC52623 coming from Room 108 with what appeared to be a "lump of tissue paper" and it was at this juncture that it occurred to her that the police may be attempting to frame her.

10. One of the officers who she referred to as Sze Ngan Kong told her that his boss wanted her to hand up 3 kg of 'Ice'. She understood from this that the police officer wanted information for a seizure of this size. There was then a discussion to how much time would be needed for this. The Applicant claimed to have also requested an opportunity to speak to the police officer she normally had contact with when she assisted them. This was refused.

11. At the police station she had been requested to sign a post recorded statement which purported to record what she had said at the time of her arrest. As she did not consider the statement to be correct she had declined to sign it.

12. She made various allegations of serious improprieties on the part of the police officers and said that she had made a complaint to CAPO. She had subsequently been asked by Inspector Tam to withdraw this complaint.

13. There are altogether seven grounds of appeal in the perfected grounds which were prepared by Mr. Haynes.

14. There is a note at the conclusion of the grounds to the effect that the summing-up was mainly in favour of the Applicant and therefore it would be necessary to proceed upon the basis that on account of the numerous matters referred to there must be a lurking doubt.

15. This was in effect the approach adopted by Mr. Walters who represented the Applicant before us.

16. In the grounds of appeal reference is made to the numerous, disquieting feature of this case.

17. The most glaring feature was the extraordinary disparity between the contents of the post recorded statement prepared by PC 52623 and the evidence given by him and other police officers at the time of the Applicant's apprehension.

18. The post recorded statement was exhibit P1A. In that statement PC 52623 records that the Applicant was searched and the dangerous drugs found when the Applicant was at the junction of the Yen Chow and Fu (sic) Wing Street. No reference whatever is made of the Applicant being in the King Dao Karaoke Bar or of anything happening there. The two versions were completely irreconcilable.

19. When this was put to PC 52623 in cross examination the only explanation he was able to give was that he was not quite feeling well at the time. This disparity remained completely unresolved.

20. As if this was not serious enough Inspector Tam, who was physically present at the Karaoke Bar according to the police testimony, independently made a similar mistake.

21. Exhibited as evidence is a teleprinter statement which the Inspector agreed in evidence had been jointly prepared by himself and another inspector which were circulated throughout the police force in accordance with the usual practice. This gave particulars of the arrest in similar terms to those described in PC 52623's post recorded statement which like it contained a number of important details in contradiction of the prosecution case.

22. It placed the interventions at the road junction and made no reference to what was said to have transpired at the Karaoke Bar.

23. In addition to this it contained a statement to the effect that when the Applicant was confronted with the suspected dangerous drugs and cautioned she had denied the offence.

24. This version is totally at odds with the evidence of the police officers who first approached the Applicant in Room 108. It was their evidence that the Applicant had stated that she had the dangerous drugs for Ah B which if true would probably constitute trafficking in dangerous drugs.

25. Inspector Tam was unable to provide any explanation for this highly unsatisfactory state of affairs.

26. When the Judge was giving directions to the Jury he did not draw their attention to the apparent contradiction concerning the Applicant's alleged denial in the teleprinted statement. He suggested that reference might only have been made to the statement that the 'Ice' was for her own consumption which would not be an admission of trafficking in dangerous drugs.

27. Although the Judge did make reference to the teleprinter statement he did not draw the jury's attention to the remarkable coincidence that two police officers should both independently give a directly conflicting version of what had occurred at the time of the Applicant's arrest. There is another aspect of this case which is deeply disturbing.

28. After the Applicant was arrested in July, she was almost immediately granted bail. She was not however charged with the present offence until 4 1/2 months later. No explanation was ever forthcoming for this delay.

29. If the evidence of the police officers was truthful and reliable they had evidence of the Applicant being caught red handed with a large quantity of 'Ice.' There was also the evidence of the police officers that the Applicant had made an admission which was tantamount to an admission of trafficking in dangerous drugs. Armed with this evidence it is extraordinary that should take 4 1/2 months for the decision to be made to prosecute.

30. After giving this application the most anxious consideration we have come to the conclusion that there is lurking doubt in this case and that the conviction cannot be regarded as being safe and satisfactory.

31. Treating the application as the appeal we allow the appeal and quash the conviction.

Representation:

Mr. LIU Yuen-ming, SGC (D.P.P.) for Respondent

Mr. Robin Walters (D.L.A.) for Applicant