HKSAR v. Wong Tak Keung

CACC000421/2002

CACC 421/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 421 OF 2002

(ON APPEAL FROM DCCC NO. 528 OF 2002)

Coram: Hon. Stock J.A., Hon. Cheung J.A. and Hon. Tong J. in Court

Date of Hearing: 7 October 2003

Date of Judgment: 3 November 2003

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J U D G M E N T

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Hon. Cheung J.A. :

Leave to appeal

1.The applicant was convicted by H H Judge Whaley of the offence of trafficking in dangerous drugs. He now seeks leave to appeal against conviction.

The prosecution's case

2.The prosecution's case is that the applicant was driving a vehicle on 2 April 2002. He was stopped at a police checkpoint in Sha Tau Kok in the New Territories. The police was conducting a vehicle check at that time. As the applicant was looking rather nervous when he was stopped by the police, a police constable conducted a body search on him. In the left front pocket of the jeans of the applicant, the police found a 'Marlboro' cigarette packet. Inside the packet were two transparent plastic bags, containing a powdery white substance which subsequently was tested to be 55.92 grams of a mixture containing 38.13 grams of heroin hydrochloride. The applicant was then cautioned. The applicant's response was that "Ah Sir, these things do not belong to me." He was then arrested for possession of dangerous drugs.

3.The police constable who conducted the search denied that the applicant had told him at the time of the search the car did not belong to him. This was only mentioned by the applicant later on at the police station.

4.The sergeant who was in charge of the vehicle checking operation confirmed the evidence of the police constable on the search. He also said that at some stage the applicant told him that the car did not belong to him but belonged to his wife's elder brother.

The applicant's case

5.The applicant gave evidence on his behalf. He admitted that he was driving the vehicle at that time. The vehicle, however, did not belong to him but belonged to his brother-in-law. He was asked by his wife to pick up the vehicle from the home of his brother-in-law and then to pick her and their daughter at the Fanling Railway Station. On his way to the Fanling Railway Station, he passed through the police checkpoint.

6.After he was stopped by the police, the police conducted a search of the vehicle and in the glove compartment the police found the 'Marlboro' cigarette packet with the packets of white powder inside. He was asked what that was and he said he did not know. He also explained to the police that the things were not his and the vehicle had just been borrowed from someone else. The police then conducted a body search on him. Some items were found in this search including a packet of cigarettes also of the 'Marlboro' brand which he put in his left front jeans pocket. The sergeant in the search team actually opened the box, inspected each of cigarette, pressing it and smelling it before handing the box and the contents back to the police constable.

Straightforward case

7.The defence case is that the dangerous drugs were not found on his body but rather in the glove compartment of the car. The car, however, was not his but belonged to his brother-in-law. He had no knowledge of the drugs. In other words, he denied possession of the dangerous drugs.

8.On the face this is a straightforward case. If the evidence of the prosecution is accepted, namely, the cigarette packet containing the drugs was found on the body of the applicant, then obviously the judge would be able to come to a conclusion that the applicant was in possession of the drugs. Considering the quantity of the drugs, the judge could further come to the view that the drugs were not meant for his own consumption but for trafficking purposes.

9.On the other hand, if the evidence of the applicant was accepted, then he could not be in possession of the dangerous drugs at all because the drugs were found in a vehicle which did not belong to him. He only borrowed the vehicle shortly from his brother-in-law.

10.The judge accepted the evidence of the prosecution and did not find the applicant to be a witness of truth.

The complaint

11.In this appeal the only ground advanced was that the judge had wrongly evaluated the evidence in relation to the packet of cigarettes.

12.As pointed out earlier, it was the applicant's case that two packets of the 'Marlboro' brand were found. The one containing the drugs was found in a glove compartment, and not from the front pocket of his jeans.

13.After the applicant was taken to the police station, his personal properties was taken from him and put in a personal property bag and a "Detained Person Property List" was completed. It included item 18, which was a packet of 'Marlboro' cigarette with "four pieces inside" which counsel at the trial understood to mean four cigarettes. The applicant's evidence was that the police had not returned the packet of cigarettes to him.

14.The personal properties of the applicant were handed over to the Correctional Services Department ("Correctional Services") when he was later put into their custody.

15.Counsel for the applicant (not Mr. McCoy S.C. and Ms Tai who only appear at this appeal) called for the personal properties of the applicant from the Correctional Services during the trial. It was discovered that the 'Marlboro' cigarette packet with the four cigarettes was no longer found among the personal properties of the applicant.

16.At the trial the applicant was asked by his counsel whether he was surprised that the packet with cigarettes was missing. He said he was. In cross-examination it was, however, revealed that when his personal properties were handed over to the Correctional Services, its officers had already discovered that the packet with cigarettes was no longer among the items of his personal properties. They asked the applicant if he wished to follow up the matter, but the applicant said that it was not necessary to do so. This indicated that the applicant was already aware that the packet with cigarettes was no longer in his personal properties even before his counsel noticed the absence of the packet of cigarettes.

17.Defence counsel wished to show that the packet containing the drugs was fresh looking and uncrumpled, whereas the packet containing the cigarettes found from the applicant's left front jeans pocket was 'squashed and crumpled'. This was to support the applicant's claim that the packet containing the drugs had not come from his pocket but from the glove compartment.

18.The complaint of the applicant is that while the judge had dealt with the discovery of the missing packet containing the cigarettes at the trial, in his judgment he had ignored a very important matter, namely, it was the existence of this packet at the time of the arrest which supported the applicant's version that was important and not its non-existence during the trial and the applicant's reaction to its absence.

The missing packet of cigarettes

19.PW1 was the police constable (PC 54651) who conducted the body search of the applicant. He was asked in cross-examination about the packet with cigarettes. His answer was that he could not recall finding the other cigarette packet.

20.The sergeant also did not recall another cigarette packet with four cigarettes inside it being found on the applicant during the search at the checkpoint. He did recall that all the items of personal property which had been found on the defendant were put on top of the vehicle, although he could not recall what those items were.

The judge's approach

21.From the outset it is clear from the facts summarised by the judge that he was fully aware of the two different versions of where the drugs were actually found. He had specifically referred in the summary to the applicant's case that the drugs were found in the glove compartment, but not in his jeans pocket which contained the packet of cigarettes.

22.Further, from the line of cross-examination of the prosecution witnesses, the judge must have realised the significance of the defence case that the packet of cigarettes was found from his left front jeans pocket. Defence counsel had forcefully put to the prosecution witnesses that they had tried to frame up the applicant by alleging that the drugs were found in his jeans pocket instead of in the glove compartment in order to strengthen the case against the applicant.

Applicant not truthful

23.The judge regarded the applicant to be an untruthful witness. Clearly there are suspicious circumstances to the case. It was the applicant's case that the drugs found in the glove compartment of the car he borrowed from his brother-in-law was not his. He had suspected that the drugs belonged to his brother-in-law and through his wife he had made enquiries with his brother-in-law. The brother-in-law denied that the drugs was his. He also suggested that the drugs were left there by his friend.

24.The applicant in his evidence stated that he had ascertained from his brother-in-law the name of his friend and yet the applicant had made no further enquiries about this matter and he did not inform the police about the identity of the person.

25.The brother-in-law actually gave evidence for the prosecution and yet he was not asked by the applicant a single question about this alleged enquiries made by him i.e. the applicant. This is totally inconsistent with someone who had been wrongly accused of a crime he did not commit.

26.After the applicant was taken back to the police station, the police conducted an interview with him. Contrary to what had actually happened, the police alleged in the record of interview that the drugs were found on his body. The applicant protested about this and refused to sign on the record of interview.

27.Later on, his lawyer arrived at the interview room, the applicant was then asked by the police officer to write out the following declaration "I read this statement. I know that I can correct, alter or add anything I wish. The content of this statement is all true and I have made it of my own free will". He then signed at the end of this declaration.

28.Despite writing out a declaration that he could change the content of the record of interview, the applicant did not do so. He claimed that his lawyer had advised him to wait until he sees the judge to make these comments.

29.This advice, if true, would be very strange indeed. As the applicant's case was that he was wrongly framed up by the police, this would be the opportunity to set the record straight lest his client would be accused of coming up with a different case after the event.

30.The applicant further claimed that at the end of the interview he had signed on a notice to persons in custody. Despite the fact that he had not read the content of the notice, he again claimed that his lawyer told him that there was no problem for him to do so.

Evaluation of evidence

31.However, having said all these, the question still remains on whether the judge had properly evaluated the prosecution's evidence. The judge held that the police officers gave a clear account of what had happened at the checkpoint and how the drugs were found in the applicant's left front jeans pocket. They were not shaken in any way in cross-examination. The judge found them to be truthful witnesses.

32.What is glaring missing from the judge's evaluation of evidence is the fact that a packet of cigarettes had indeed been found by the police officers who conducted the search. Yet both the police constable and the sergeant testified that they could not recall if the packet of cigarettes had been found. As a matter of common sense if they had found drugs inside a cigarette packet, it is more likely that they would also try to examine the content of the other cigarette packet in order to ascertain whether the other packet contained drugs as well.

33.It may well be, as Mr. Zervos, S.C., counsel for the respondent submitted, that the police officers were concentrating on the packet which contained the drugs and had forgotten about the other packet of cigarettes. But the judge had not dealt with the evidence in this manner.

34.Can it be said that the judge must have implicitly proceeded on this basis? The difficulties is that the court is faced with a "one against one" situation. The prosecution and the defendant had given different accounts of the search. While it is entirely within the fact finding powers of a trial judge to decide which evidence he would accept, there must be a proper basis for arriving at this conclusion. The applicant's case is that the prosecution first found the packet containing the drugs in the glove compartment, then a packet of cigarettes was found in his jeans pocket. Before the judge could resolve that the police officers were truthful witnesses, he really needed to resolve first how their claim that they had no recollection of finding a packet of cigarettes could fit with the established fact that a packet of cigarettes was in fact found on the body of the applicant.

35.The applicant is a man of clear record. If the significance of this is that such a person is less likely to have committed the offence than otherwise be the case and also he is less likely to have told lies about the matters which are in issue, then all the more the judge should confront this matter and resolve it before he can truly say that the police officers were truthful witnesses and accept their evidence that the drugs were found in the applicant's jeans pocket.

36.On the appellate level, I am not prepared to say that this Court can resolve the matter itself. The challenge is not resolved by simply saying that the judge must have proceeded on the basis as suggested by Mr. Zervos because the fact is that the judge had simply not proceeded on that basis.

37.The difficulty is not resolved by saying that there could not be any possibility of wrong doing on the part of the police since they had chosen to include the packet of cigarettes in the "Detained Person Property List". In my view, the real issue is this : the glaring gap in the evidence of the two police officers obviously has a significant bearing on their credibility. Until this matter is addressed by the judge, one just cannot say that they had given a clear account of where the drugs were actually found or that they are indeed truthful witnesses. In my view the absence of specific finding on this renders the verdict unsafe and unsatisfactory.

The original focus

38.The original focus of the appeal is that the judge had wrongly emphasized the reaction of defence counsel when he discovered that the packet of cigarettes was no longer in the possession of Correctional Services. He had also wrongly emphasized on the reaction of the applicant when he claimed that he was surprised to find that the packet of cigarettes was no longer among his personal properties. It is said that the judge had not specifically dealt with the applicant's contention about the packet with drugs not being crushed and that the packet of cigarettes being crushed.

39.The appearance of the packets would not by itself a matter of such importance that it will render the verdict unsafe.

40.It does not follow that because a packet of cigarettes which were found in the jeans pocket might have an appearance of being crushed, the packet of drugs which did not have the appearance of being crushed would not have been found in the applicant's jeans pocket. It really depends on the tightness of the jeans and how the content of the packet was filled. After all, the 'Marlboro' packet which was produced in court was the hardboard, crush-proof type.

41.The applicant had produced a pair of jeans at the trial which he claimed to be similar to the one he was wearing on the day of his arrest. He claimed the jeans were rather tight.

42.Defence counsel had also referred to the packet of cigarettes being in a crush state, but the evidence from the applicant was rather vague in this regard. In his evidence-in-chief, the applicant did not say that the packet of cigarettes was crushed when it was found in his front jeans pocket. Under cross-examination, he was asked about the suggestion that the packet of cigarettes was crushed. He said he agreed with the suggestion. Then the court asked this question

“ Well, it's being put to you when you put it in your pocket - that the usage that being suggested to you - when you pulled them out, are they crushed?"

43.The answer given by the applicant was

“ Well, it depends on what the person would be doing at the time."

44.This is a rather vague and equivocal response.

45.However, given the strength of the argument relating to the evaluation of the evidence of the police officer, the state of the appearance of the cigarettes would lend support to the applicant's case that the packet of drugs which did not have the appearance of being crushed was in fact found in the glove compartment and not from the jeans pocket of the applicant. This matter also would need to be addressed by the judge in his assessment of the credibility of the parties' case.

Conclusion

46.For my part, I would allow the application, quash the verdict and order a re-trial of the case.

Hon. Stock J.A. :

47.The essence of the complaint in this appeal is that the trial judge did not appreciate, or if he did, did not address, the key fact undermining the reliability of the evidence of the main prosecution witnesses, yet supporting the account of the applicant at trial, namely, that there were two cigarette packets in the vehicle which the applicant had been driving. It was, it is said, inherently incredible that the officers could not remember the existence of the second packet (as I shall call it), that is to say, the packet which contained cigarettes, which leads in turn to the suspicion that they had somehow to wish away the second packet because its existence sat ill with their contention that they had found the cigarette packet with drugs on the person of the applicant. All this being so, it was incumbent upon the judge, it is argued, to address the two packet issue and that he has not done so, or in so far as he has, he appears to have missed the point.

48.I would make the following answer:

(1)	The existence of two packets does not exclude both being on the applicant's person. There is no suggestion that he had no place for them other than the left pocket of his jeans. We see for example PW1 saying that "... if they [the second packet] were [found] of course its in the other pocket" (page 51 appeal bundle).
(2)	It was not the evidence of the officers that no other packet was found. The true effect of their evidence when read fully is that they did not recall what else was found. "All I can remember" said PW1 "is I found the drugs from the left pocket". When asked where the second packet was found he said: "I don't have much of an impression. I don't know where they were found".
(3)	There was no attempt by the police to spirit away the second packet. It was quite evidently delivered by them to the police station and was not lost whilst in police custody.
(4)	The transcript of the evidence discloses lengthy and vigorous - indeed, singularly repetitive - cross-examination of the police officers about the very points which it is said the judge has missed. Quite apart from that which is evident from comment in the course of the case, to which I shall next turn, and from the Reasons for Verdict, the judge must from the nature of this cross-examination have been fully alert to the points being made.
(5)	That the judge was alert to the significance of the crushed or non-crushed state of packets found on the applicant is evident from the fact and nature of the judge's own intervention in the course of cross-examination of the applicant after it had been put to the applicant that the packet in which the drugs were found was a crush proof packet:
	" COURT: Well, it's being put to you when you put it in your pocket - that's the usage that's being suggested to you - when you pull them out, are they crushed?
	A. Well, it depends on what the person would be doing at the time." (Tr p 159)
(6)	In the Reasons for Verdict, the judge made frequent reference to the second packet and to cross-examination about it, to the fact that it was on the property list; and to the contrary evidence of the applicant in relation to its finding and the place where the drugs packet was found. In the event he said that he did not believe the applicant's testimony and that he was "... satisfied beyond reasonable doubt that their evidence was truthful, that the drugs were found in the pocket of the defendant's jeans during the body search and that the defendant's evidence that the drugs had been found in the motor vehicle was a lie" (page 15 appeal bundle). If he was satisfied that the evidence of the police officers was truthful, it follows that he accepted their testimony that they did not remember the finding of the cigarette packet, and the evidence, or its effect, that their recollection was concentrated on the material find which revealed the commission of a criminal offence, namely, what was in the left front pocket of the applicant's jeans. He was entitled to accept that evidence, and the failure of this professional tribunal to say in terms why he accepted it does not in my view render the conviction unsafe or unsatisfactory.

49.I would in the circumstances grant leave to appeal but, treating the hearing of the application as the appeal, I would, for the reasons I have given, dismiss the appeal.

Hon. Tong J. :

50.I agree with Mr. Justice Cheung JA's judgment.

Hon. Stock J.A. :

51.In the result, the Court grants the applicant leave to appeal and treating the hearing of the application as the appeal, allows the appeal by a majority, quashes the conviction, and orders a retrial upon the same charge. The applicant is remanded in custody pending retrial.

Representation:

Mr. Kevin Zervos, S.C., SADPP and Ms Priscilia Lam, G.C. of the Department of Justice for the Respondent

Mr. Gerard McCoy, S.C. and Ms Corrina Tai instructed by M/s Louis K.Y. Pau and Co. for the Applicant

Application by the Applicant for a certificate for leave to appeal to Court of Final Appeal as to costs refused by Court of Appeal. Please refer to CACC421/2002 dated 13 January 2005