Kam Chung Ho v. HKSAR

CACC000448/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 448
(Criminal)

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Coram: Hon Liu, J.A., Rogers and Stuart Moore, JJ.A. in court

Date of Hearing: 23 December 1997

Date of Judgment: 23 December 1997

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced two counts in the High Court before Deputy Judge Wong, one count of trafficking and one count of simple possession. He was found guilty on both by the jury. The Deputy Judge sentenced him to 10 years and 6 months respectively. Both sentences were, by order, to be served concurrently. The applicant feels aggrieved by the verdicts and he seeks leave to appeal against his convictions.

2. The facts could not be more straightforward. On 13 October 1996, the Sergeant and two police constables knocked on the door of Flat B, on the 10th floor of 72 Argyle Street in Kowloon. The door was open but ajar, and the police constable showed a search warrant. He declared their identity as police. The door was immediately shut. The police constable knocked again and shouted that they were police, executing a search warrant for dangerous drugs. The police demanded the door to be opened. There was no response and the police had to break the door down with a hammer and a crowbar. It took them about 10 minutes. Upon entry, the applicant was found sitting on a mattress.

3. A search was thereupon conducted by the police in the premises. Among other things, under a blue doormat a plastic box was found, which contained five transparent plastic bags. Inside each was suspected Ice. Also found were eight paper rolls, one paper bag containing suspected dangerous drugs, a plastic Coca Cola bottle containing suspected dangerous drugs solution, 15 transparent resealable empty transparent bags, a postal scale and a lighter. These substances and solution were dangerous drugs as they were subsequently certified by the proper authority.

4. Turning back to the scene of the search, the police asked the applicant what was inside the small packet and the Coca Cola bottle. The applicant answered:

"You arrest me as you like. I've nothing to say."

The police constable further asked the defendant this :

"Does this stuff belong to you and how did you get it?"

The applicant's reply was :

"I've been caught red-handed. Nothing to say."

Thus far, to the police the defendant seemed to be saying : "I have committed some arrestable offence or offences. Arrest me if you like, but I am not saying anything." Later, again to the police, the defendant seemed to be adding : "I am caught doing something I believe to be unlawful. I have nothing to say." To what offence or offences precisely the defendant was referring was unclear. Moreover, it was equally vague whether the unlawful acts the defendant believed to have done were arrestable offences.

5. These answers of the applicant were as ambiguous as they were indirect. Strictly speaking, the police could not even accept them as relating clearly to the articles seized. The police were, therefore, proper to further enquire if he lived there. To that, the applicant answered :

"I rent this flat for residential purpose."

The police constable proceeded to search the defendant and found on him three keys from his trousers pocket. The police then declared arrest. It was fair for them to do so at that juncture.

6. The constable who asked these questions told the judge and the jury that he had reasons enough to arrest the applicant upon entry and that it was a breach of the rule in his questioning of the applicant without first administering a caution. That is the police constable's belief. The judge had all this evidence and he did not, in the exercise of his residual discretion, exclude the verbals. After all, the defence took no point on involuntariness. This court can only interfere with the judge's residual discretion when the judge can be shown to be plainly wrong. In all the circumstances, we cannot say he was. That is Ground 1. In the circumstances I have set out, there is nothing in this ground. Mr Saw for the respondent was, therefore, not called upon to respond to it.

7. Three further grounds are advanced on behalf of the applicant. Ground 2 concerns the ownership of a computer keyboard found in the premises. A keyboard and a monitor of a computer were placed in a hi-fi cabinet. The judge directed the jury in these terms:

"Now, the other thing which you may like to consider is you may recall from the evidence of the Defendant that Ah Kon worked in a karaoke and he said that there was a keyboard and a monitor of a computer and they were placed in a hi-fi cabinet. What purpose does it serve for someone who works at a karaoke to have a computer? On the other hand, the Defendant was the proprietor of an air cargo company. Did he need a computer for his trade? Well, this is a matter for you. If you are satisfied that it was the Defendant's computer, does it not point to the fact that it was the Defendant who lived there? Again, it is a matter for you."

It is true that the matter was left to the jury. But it was left to them on wrong premises. It would not be right that a worker in a karaoke establishment would not likely use or play with a computer or that for that matter, the proprietor of an air cargo company would more likely need a computer. In this day and age, it is common knowledge that the old and the young, man or woman use or otherwise play with computers. The jury was wrongly directed on these erroneous assumptions on which they were invited to speculate on ownership. There seems to be merit in Ground 2.

8. We need go very quickly through the other grounds. Ground 3 complains of the direction given by the Deputy Judge on the presence of women's clothings in the premises. This is what the judge said in his summing up:

"Now, even if those were women's clothing's, does it mean that the Defendant was not living there? And there is evidence Ah Kon" - we might add that she was one of the girl friends of the applicant - "did spend some nights there, isn't it [logical] that some clothings would have been left there? Whether by merely having the women's clothings found in the flat, can you really say that the Defendant did not live there? It's a matter for you."

9. Earlier, the judge invited the jury to use a magnifying glass to look at a photograph produced to see whether the articles in the photograph, hanging near the window were women's clothings. The police officers who gave evidence in the case were unable to identify from the photograph these articles near to the window. There was no evidence given on the articles. The invitation of the trial judge would seem to be out of order. The defendant testified that his girl-friend Ah Kon was living in the premises and that she kept her clothings in them. It was part of the evidence the applicant relied upon in the trial for his defence that he was not an occupant of the premises. He leaned heavily on the presence of women's clothings as part of the evidence in support of his assertion that the premises were occupied by his girl-friend alone. What the judge said in the quotes we have just referred to might very well be understood by the jury to mean that it would be illogical to rely at all on the presence of women's clothings to establish that he, the applicant was not, in fact, living in the premises. The jury could have taken that part of the summing up as instructions to wholly disregard the presence of the women's clothings. It was sheer credibility and the jury would do well without their attention drawn to logic. This possible misunderstanding must be a matter of considerable prejudice. There is, we find, substance also in Ground 3.

10. Lastly, the Deputy Judge was criticised for inviting the jury to speculate on the condition of the doormat, to be more correct, on the condition of the doormat shown in a photograph. After the police entered the premises, according to the prosecution evidence, the blue doormat was found placed on top of the plastic box which was ultimately discovered by the police to contain dangerous drugs. The applicant denied that those dangerous drugs were his. There was no evidence led on the doormat. To the defence, it must have been the police who removed the doormat and placed it over the plastic box. In addition to his denial of occupancy, the applicant through counsel challenged the credibility of the police and relied, among other things, on the alleged conduct or misconduct of the police in manufacturing evidence for demonstrating a somewhat vain effort on his part to conceal the drugs. It was largely a matter of credibility on which, in this aspect, the judge should not have invited the jury to examine any trampling marks on the blue doormat from a photograph in which the doormat was partly concealed. It was all very unsatisfactory. There is substance in the complaint raised on behalf of the applicant on Ground 4.

11. For all these reasons, the convictions cannot stand as safe or satisfactory. The matters complained of leave us with no room for invoking the proviso. We, therefore, treat the application for leave to appeal against conviction as the appeal proper. Having heard the appeal, we allow it and set aside his convictions and sentences.

Representation:

Mr D G Saw, S.C. SADPP and Simon Kwan G.C. (DPP) for Respondent

Mr Robin Walters assigned by DLA for Applicant