Fan Koon Hung v. HKSAR

FAMC000031/1999

FAMC No. 31 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 20 OF 1998)

_____________________

_____________________

Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 11 February 2000

Date of Determination: 11 February 2000

__________________________

DETERMINATION

__________________________

Mr Justice Bokhary PJ:

1. This applicant faced three counts before Deputy Judge Lugar-Mawson (as he then was) and a jury in the High Court. The first count was of trafficking in dangerous drugs consisting of 1,740.30 gms of a mixture containing 1,489.84 gms of heroin hydrochloride. According to the police, those drugs were found in a bag which the applicant was carrying when they stopped him in the staircase of a block in Ho Man Tin Estate on the morning of 11 April 1997. He had, the police said, attempted to flee but had fallen down, injuring himself. They said that the dangerous drugs the subject-matter of the 1st count were then found in the bag which he had been carrying. And they said that he admitted knowing that they were dangerous drugs.

2. The attempt to flee formed the subject-matter of the 2nd count, which was of resisting two police officers in the course of their duty. They said that he had pushed one of them and that he had broken free from the other of them before he fell down, injured himself and was caught.

3. As for the 3rd count, it was also of trafficking in dangerous drugs. According to the police, the applicant had on him keys which turned out to be those of a flat in the same block. They said that when they escorted him to that flat shortly after his arrest in the staircase, he told them that there were more drugs under his mother's bed. And they said that they found under that bed the drugs the subject-matter of the 3rd count, namely 25.93 gms of a mixture containing 13.37 gms of heroin hydrochloride.

4. In addition to evidence of the matters which we have just outlined, the prosecution sought to rely on certain admissions. First, they sought to rely on oral evidence of verbal admissions which the applicant made in the staircase and in the flat. Secondly, they sought to rely on a post-record of those admissions, which post-record was made at Ho Man Tin Police Station later that morning. Thirdly, they sought to rely on the admissions contained in the record of an interview of the applicant in the custodial ward of Queen Elizabeth Hospital that evening. The police officer who made the post record and the record of interview was the one who said that verbal admissions had been made by the applicant in the staircase and in the flat.

5. The defence case was as follows. The applicant did not have any drugs with him in the staircase. The police assaulted him there. He made no admission there. The drugs in the flat were "planted" by the police. The post-record and the record of interview were involuntary.

6. Following a voir dire hearing on the admissibility or otherwise of the verbal admissions, the post-record and the record of interview, the judge admitted the verbal admissions in evidence but excluded the post record and the record of interview. His ruling on the voir dire was in these 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."

7. On 19 December 1997 the jury convicted the applicant on all three counts. These convictions were affirmed by the Court of Appeal (Nazareth VP, Stuart-Moore VP and Keith JA) on 15 November 1999. Wishing to take the matter to the Court of Final Appeal, the applicant asked the Court of Appeal to certify three questions as questions of law of great and general importance involved in the appeal. With the addition which the applicant made before us this morning, which is of the words "without giving his reasons for so doing" at the end of the second question, those questions read as follows:

"(1) whether after a voir dire a trial judge who refuses to admit into evidence written post records of certain verbal admissions should allow oral evidence of those same admissions to be given by the same witness whose 'writings' he has refused to admit, without stating his reasons for so doing;

(2) whether a trial judge should admit oral evidence of verbal admissions allegedly made at the scene of arrest where he is not satisfied that the normal procedural safeguards and practices have been properly carried out and/or observed by the police who claim to have heard the 'verbals' without giving his second reasons for so doing;

(3) whether a trial judge giving a ruling on a voir dire which has included allegations of serious police misconduct at the time of arrest should specifically state that he has considered his general discretion to exclude (as well as matters of voluntariness) before deciding to admit the verbals whilst excluding the written records of them."

8. On 7 December 1999 the Court of Appeal (Nazareth VP, Stuart-Moore VP and Wong JA) refused to certify those questions. The applicant now asks us to certify the three questions as amended and grant leave for them to be pursued in the Court of Final Appeal. Leave is also sought on the "substantial and grave injustice" limb.

9. As to the first question, it would have been helpful if the judge had said why he admitted the verbal admissions but excluded the post record and the record of interview when the police officer who gave evidence of the verbal admissions was the one who made the post record and the record of interview. But it is settled and sound law that there is no general rule by which judges are obliged to give reasons for their rulings on the admissibility or otherwise of disputed admissions. So it comes down to whether the circumstances (i) disclosed sound reasons for the judge to rule as he did and (ii) pointed clearly to his having acted upon those reasons.

10. The Court of Appeal examined the circumstances with care. Giving the Court of Appeal's reasons for refusing to certify, Nazareth VP said:

" There were in this case very good reasons for the judge to have excluded the written recordings for the simple reason that the solicitor was excluded in circumstances where quite clearly he should have been afforded access. Clearly in relation to even that alone, the judge had good reason for excluding the written recordings, reasons that plainly did not go to the oral admissions. Therefore, it must have been at least upon that basis that he excluded the written recordings, a point that has even more significance in relation to the third point to which we shall come."

There the matter must rest.

11. Turning to the second question, this is what Nazareth VP said:

" As to the second point, the normal procedural safeguards that Mr Haynes submits should have been carried out, are that the applicant should have been cautioned on the spot and also that what he said should have been recorded at the scene. We cannot see that this could be the subject of a point of law of great, general and public importance. The law here, too, is well settled. In the circumstances, here the matter turned on the facts."

We agree. Omissions of that kind do not necessarily mean that admissions are inadmissible. Nor do we think that the addition of the words "without stating his reasons for so doing" takes the applicant's position any further.

12. As to the third question, we repeat what we said in regard to the first question, and add that we agree with Nazareth VP who said:

" Turning to the third point, and this is one that Mr Haynes particularly relies upon, we have already given reasons why certification is not warranted, and touched upon the desirability of reasons being given. As we have observed, the position in law is clear; there is no absolute requirement for reasons to be given. There were, as we have said, undoubtedly good reasons for the exclusion of the written records and not the oral statements. It is clear that the judge must have exercised his discretion at least upon that basis. It was not necessary for him in the circumstances to have expressly given his reasons."

13. No reasonably arguable case of substantial and grave injustice has been made out. We refuse to certify or grant leave to appeal This application is dismissed.

Representation:

Mr John Haynes (instructed by M/s Chong, Leung & Co.) for the applicant

Mr D.G. Saw SC & Miss Lily Wong (of the Department of Justice) for the respondent