HKSAR v. Lee Yat Fan

CACC000414/1999

CACC 414/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 414 OF 1999

(ON APPEAL FROM HCCC 429/1998)

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Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 14 June 2000

Date of Judgment: 14 June 2000

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. On 20 July 1999 after a trial in the Court of First Instance before Deputy Judge W Wong and a jury, the applicant was found guilty of two counts of trafficking in a dangerous drug. The first count relates to 305.62 grammes of a mixture containing 210.62 grammes of heroin hydrochloride. The second count relates to 340.54 grammes of a mixture containing 233.31 grammes of heroin hydrochloride. He was sentenced to a total of 15 years imprisonment and he now applies for leave to appeal against conviction.

2. The prosecution case is this:

3. At about 5:00 p.m. on 1 September 1998, two plainclothes police constables PC50601 (PW1) and PC 54503 (PW2) were patrolling in Kiu Kiang Street, Kowloon. They saw the applicant walk to the rear of a blue motor-scooter parked by the roadside and open the rear box of the motor-scooter. They saw him take out two pink bags of substance and tuck them into his front at his waistband, covering them up with his top. The officers went up to him and revealed their identity in an attempt to stop him but he ran towards a car parked across the road in which a girl was in the front seat. The officers gave chase but the applicant managed to get into the car and drive off for a short distance before it knocked down an elderly lady, forcing him to stop the car. At this juncture the officers caught up with the applicant and PW1 succeeded in pulling the applicant out of the car. The applicant was searched and two pink plastic bags were found tucked in the applicant's front waistband. The bags were found to contain what was subsequently proved to be the drugs specified in the first count.

4. The applicant was arrested. He admitted under caution that he was carrying the drugs for someone else and he asked for a chance. The motor-scooter was searched but nothing was found. A police vehicle arrived at the scene and the applicant and the girl were taken back to the Shum Shui Po Police Station. At the police station, the applicant was interviewed by PW1. The interview took place in room G8 and between 7.20 p.m. and 8.52 p.m. that day. The statements made by the applicant and the questions asked of him and the applicant's answers were recorded in a record of interview which the applicant signed. At 10.17 p.m. a lawyer came to see the applicant and the applicant met his lawyer for about 5 minutes. Thereafter the applicant was taken to his home in Pat Heung for a house search during which police officers found the drugs specified in the second count.

5. The applicant was arrested for trafficking the second amount of dangerous drug. Under caution the applicant said that he carried the drugs found in his home for a person called Fa Sha. He was then taken to Pat Heung Police Station where he was interviewed again by PW1 who made a record of the interview. During the interview the applicant admitted to the effect that he carried the drugs found at his home for that person Fa Sha. PW1 told the court that these records of interview were accurate records of what the applicant said in the interviews albeit some of the words that were recorded were not the applicant's exact words.

6. The applicant's version was that he had lent the motor-scooter to the person Fa Sha. On 1 September 1998, Fa Sha phoned him and told him that he (Fa Sha) had crashed the vehicle and had left it outside a betting shop in Kiu Kiang Street. Having arranged to meet Fa Sha there, the applicant went with his girlfriend in his private car to Kiu Kiang Street to look at the motor-scooter. On arrival he went to inspect the motor-scooter for damage. He did not take anything from the rear box of the motor-scooter nor did he open it because it was locked and the key to the lock was with Fa Sha. Fa Sha had not yet arrived. The applicant then went to his car and sat there to wait for his arrival. At this time, PW1 approached him and told him to wind down the window and he did so. PW1 without revealing his identity, tried to snatch the ignition key and the applicant tried to push PW1 away. As a result there was a struggle. The applicant somehow managed to start the car and drive off but before long, he knocked down a woman and was forced to stop. PW1 was then able to catch up with him and with the help of other officers, PW1 pulled the applicant out of the car. The applicant was taken to the rear of a van and there he was manhandled. Later he was taken to a private car where he found his girlfriend was already there. Both of them were later transferred to a police vehicle which took them back to the Shum Shui Po Police Station. The applicant said that it was only during the interview by PW1 that he was told that drugs were found in the motor-scooter rear box, otherwise he had no knowledge of the drugs. He said PW1 told him that the drugs found could land him in jail for 10 years. The applicant explained to PW1 why he was at the scene and that he had not committed any offence but this was not accepted by PW1. PW1 then left the room and came back later with some documents. The applicant was told that the documents were about him being arrested and drugs being found on the motor-scooter. The applicant was told to sign them and that if he signed the documents that would not land him in trouble and if he did so, PW1 would report to his superior that he had been co-operative. If he did not, bail would not be arranged for him and his girlfriend. As a result the applicant signed the documents. The applicant said he did not provide the contents of the documents and neither did he make any oral admission. Regarding the lawyer's visit, the applicant said he turned his lawyer away because he was told that seeing his lawyer would hinder police work and cause trouble to the police and he did not want to cause trouble. As regards the house search, the applicant said he had told the police that Fa Sha had moved to stay at his home and had the keys to the premises. He had no knowledge of the drugs found in the cabinet in the sitting room at his home. As to the statement he signed at Pat Heung Police Station, he said the police gave documents to him to sign. He never made any oral admission and he had no knowledge of the contents of the documents. He signed the documents because he wanted to settle the matter quickly so that he could leave.

7. There are a number of grounds in the amended perfected grounds of appeal against conviction. The first ground is that "the learned Judge erred in holding that the appellant's alleged confessions were voluntary". However, this morning Mr Hemmings, for the applicant, has informed us that this ground has been abandoned. He applies for leave to submit a new first ground. The new first ground is this:

"The Learned Judge erred, having ruled after the Voir Dire that the Records of Interview were admissable, in failing to withdraw them from the jury when it became clear that they were not an accurate record of what the Applicant actually said

OR, in the alternative,

The above having become apparent, the Learned Judge erred in failing to address the jury on the weight they could attach to a document which was not, admittedly, an accurate record of what the Applicant actually said."

8. We have heard Mr Hemmings on his application and have considered the merits of the application and the proposed new first ground of appeal. We do not think there is any merit in this proposed ground and we refuse the application.

9. The second ground is that the trial Judge descended into the arena during the trial. Mr Hemmings referred us to those parts of the transcript which he said recorded the Judge's interventions. He also referred us to some comments the Judge made in his summing-up. He submitted that there was a real danger that these interventions and comments ultimately tipped the scales against the applicant. He referred to Jones v National Coal Board [1957] 2 QB 55 and R v TAM Chim-pang & Others [1986] HKLR 1122 on the judge's duty to remain impartial and the need for a trial to be observed as being conducted fairly.

10. The principles in this regard, set down in Jones v National Coal Board by Denning LJ at p. 64, are well-known and these had been cited in R v TAM Chim-pang & Others. It may be worthwhile for them to be repeated here. What Denning LJ said at p. 64 is this:

"The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that advocates behave themselves seemly and keep to rules laid down by law, to exclude irrelevance and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: 'Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well tuned cymbal'."

11. This passage was again referred to more recently in R v YEUNG Mau-lam [1991] 2 HKLR 468. But in the case of YEUNG Mau-lam, Power JA (as he then was) said that the ultimate question is whether the interventions by the judge were of such volume and nature as would render a bystander to say that the applicant's trial is unfair and whether the interventions invited the jury to disbelieve the applicant and cause the convictions to become unsafe or unsatisfactory.

12. Returning to the interventions, in the first of these Mr Hemmings said the Judge had provided an answer and an explanation for PW1 to rely on. This is at p. 242K of the transcript. This occurred during the cross-examination of PW1 who had asserted that he had written down the exact words of the applicant when he recorded the statements from the applicant but the record apparently did not show that this was the case. The witness explained that he had written down the meaning of what the applicant had told him. The Judge intervened and gave an example to show that sometimes words spoken in Cantonese or Punti could not be written down exactly because there were no such characters and literal words with equivalent meanings would be written down instead. The Judge in such circumstances was only saying what was obvious to a Chinese Cantonese speaker. He was not really providing an answer for the witness.

13. The next complaint (at p. 258J of the transcript) was the Judge provided an answer for PW2 who was being cross-examined as to the time when the photographs of the applicant's home were taken. PW2 said they were taken between 11.50 p.m. and midnight whereas one of the photographs taken depicted a clock showing the time of 25 minutes past midnight. PW2 maintained that the photos were taken before midnight and he had made a note of the time when he took them and he would not know if the clock shown was defective. The Judge then asked "Or alternatively, something's wrong with your watch, is it?" PW2's answer was: "In that case, I am not clear." The difference in time between that shown on the clock and that which PW2 maintained in his evidence could be the result of the time on the clock being correct or PW2's record not being correct. The Judge was merely suggesting the logical alternative possibility and was not providing an answer to the witness to help him out of his difficulty. This could not have prejudiced the applicant.

14. The next intervention that Mr Hemmings said was improper was the Judge had introduced the matter of display of "Notice to Suspects" (at p. 258J) as it had not been raised during other evidence. The subject of Notice to Suspects had been raised in other evidence because PW1's evidence was that on each occasion before he started his interview with the applicant, he had handed to the applicant a copy of Notice to Suspects in custody which was then signed by the applicant. The Judge raised the question whether such a notice had been displayed in the report room. This was relevant as to whether the applicant was aware of his rights as a suspect in custody. This could not have been prejudicial to the applicant.

15. The Judge had questioned the applicant at the end of his evidence as to whether he noticed any lines on the records of interview which filled the gaps after the writing, when he signed the records of interview. This is at p. 337 - p. 339 of the transcript. It is not clear from the transcript to what extent these lines were relevant and what was the significance of these lines. Counsel for the defence was given the opportunity at the end of the Judge's questioning to re-examine the applicant. The records of interview were before the jury and it was for the jury to decide if the applicant's evidence of what happened during the interview was true.

16. The questions could not have been adverse to the defence's case suggesting that the applicant was not telling the truth.

17. In our opinion, the interventions by the Judge to the witnesses and the defendant, whether in terms of volume or nature, and whether cumulatively or individually, are not such to make the trial of the applicant unfair or as to invite the jury to disbelieve the applicant. This case is very much different from the circumstances in the National Coal Board case where the trial Judge took over from counsel the examination-in-chief of more than one witness and intervened at considerable length in the cross- examination of a witness which in effect stopped counsel's cross-examination. The Court of Appeal in that case considered that "the interventions, taken together, were far more than they should have been." Again the present case is different from TAM Chi-pang and Others where the trial Judge's questioning of the defendant ran into 9 pages of transcript and contained 150 questions.

18. Mr Hemmings further complained that the Judge in his summing-up at p. 20 commented adversely about the $30,000 found in the possession of the applicant which was not canvassed in evidence.

19. The matter of the money was raised by the applicant. It was his evidence that at the time of arrest, he had with him over $30,000 and that was for paying the licence fee, insurance and mortgage for his private car which had expired at the end of August 1998 and this money was given back to his girlfriend at the police station in the presence of PW1. The Judge's summing-up in this respect in its full context should be considered:

"As to the purpose of the defendant going out to Kowloon on 1 September, there were two versions. The first, he said Fa Sha had arranged with him to meet at 5 pm to inspect his damaged scooter; and then afterwards he arranged to take his dog to the vet. However, later on when he explained about the $30,000 found on him, he said he carried those $30,000-odd on him because he intended to pay for the insurance and the mortgage of his car and the licence. No doubt you know that for all government departments, except perhaps with the disciplinary forces and judicial officers, they do not work after 5 pm. So why was he there at about 5 pm in Kiu Kiang Street? It is a matter entirely for you?"

20. What the Judge did here was to point out to the jury that the applicant's evidence as to why he went to Kiu Kiang Street, in relation to his explanation on the money found on him. It would be for them to decide whether the applicant's presence at the scene was for the innocent purpose he asserted in evidence or was for the purpose of picking up the drugs as alleged by the prosecution. In any case the jury was free whether to adopt the Judge's view of the evidence. We do not think this is unfair to the applicant. The second ground therefore must fail.

21. The third ground is that the Judge failed to advise or remind the jury adequately or at all on the significant discrepancies in the prosecution evidence. The discrepancies the applicant complained of are to be found in the evidence of PW1 and PW2, essentially their evidence as to whether the officers had touched the applicant when they intercepted him at the scene and their evidence as to the time the applicant was put inside the police vehicle after his arrest. In our view, these discrepancies are not so significant as to render their evidence devoid of credibility.

22. In any case, the Judge told the jury this:

"Defence counsel has in detail told you the discrepancies or contradictions of the police evidence. From those contradictions or discrepancies, can you be sure that what the police said were true? Or whether those were just minor details which would not affect your finding? It is a matter for you. If you find the police evidence unsatisfactory because of those contradictions or discrepancies, then you are entitled to reject it. As I have told you earlier, you are entitled to accept the whole or part of a witness' evidence, or reject it altogether."

23. Indeed, at the end of the trial counsel for the applicant had addressed the jury on the evidence of PW1 and PW2 in detail, especially the discrepancies in respect of which, the applicant now complained that the Judge had not referred to in his summing-up. The jury had heard the evidence and any discrepancies which had been brought out in cross-examination of the witnesses, would have been noted by them. Further, the jury had been told by counsel about these discrepancies. The present case was a straight forward one. The Judge had also dealt with the evidence of PW1 and PW2 in details and he need not deal with every discrepancy in evidence in his summing-up. In our opinion, no criticism could be made in respect of the way in which the Judge had dealt with the matter. Albeit there was a lapse of a day or two between the final addresses and the summing-up, the evidence would still be fresh in the jury's mind when they returned for the summing-up after the time gap. The third ground fails.

24. The fourth ground is that the Judge failed to remind the jury of Senior Inspector TAM's evidence about access to lawyers. This ground has no substance. It was the applicant's own evidence that he was given the opportunity to see the lawyer and he did see the lawyer. Whether he saw the lawyer alone as testified by the prosecution witness or as he said, he saw the lawyer in the report room and told the lawyer to go away is a matter for the jury. There was no evidence that the applicant had been deprived of his right to see the lawyer. In any case, Senior Inspector TAM's evidence was that apart from the case where a visit by a lawyer would hinder police work, for instance, while the arrested person is being interviewed, he would not have prevented any arrested person from having his legal visit. The jury had heard the evidence and it was for them to give weight to such evidence. The fact the Judge did not mention the senior inspector's evidence in his summing-up does not mean that the applicant did not have a fair trial.

25. The fifth ground is that the Judge misdirected the jury as to the defence case. This is no longer relied upon by the applicant. Mr Hemmings has indicated this ground is also abandoned.

26. The final ground is that the convictions were unsafe and unsatisfactory. There was abundant evidence before the jury which must have been accepted by the jury for them to return a conviction. We do not think this ground has been made out. In these circumstances, we refuse the application for leave to appeal against his conviction.

Representation:

Mr Albert Wong, SGC, of the Department of Justice, for the respondent

Mr John Hemmings & Mr James McGowen, instructed by Messrs Ivan Tang & Co. for the applicant