HKSAR v. Chan Chun Nam

CACC216/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.216 OF 2004

(ON APPEAL FROM DCCC110 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Lugar-Mawson and Lunn JJ in Court

Date of Hearing : 22 December 2004

Date of Judgment : 22 December 2004

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

1.The applicant applies for leave to appeal against his conviction, after trial in the District Court by Judge Sweeney, of a single charge of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3)  of the Dangerous Drugs Ordinance, Cap.134.  The drugs in question were 29.58 grams of a mixture containing 23.8 grams of heroin hydrochloride.

THE PROSECUTION CASE

2.The prosecution case was that at about 10:05 a.m. on 10 September 2003 the defendant was stopped by two police officers as he emerged from the entrance to Co-Tak Building, 484-492, Chatham Road North, Kowloon.  A search of his person revealed the presence in his front right trouser pocket of three plastic bags, which in turn contained 74 small packets of a white powder.  The prosecution relied upon the evidence of DPC54435 of the discovery of those packets at that time and place and in respect of oral admissions made by the defendant after their discovery and a written record of interview conducted by the officer of the defendant later at Ma On Shan Police Station.  The alleged oral admissions by the applicant were rendered into writing in the officer’s note-book in the street soon thereafter and later, and in more detail, in a post-record made by the officer in another police note-book at Ma On Shan Police Station.

THE DEFENCE CASE

3.The applicant did not give or call evidence at the trial.  It was an admitted fact that the multiple packets of white powder contained the dangerous drugs described in the government chemist’s certificate. However, by cross-examination the defence put in issue the prosecution evidence that the 74 packets of white powder had been found in the trouser pocket of the applicant and the admissibility of the three written records of the alleged admissions made by the applicant to the police officer.  Of the former matter, it was suggested in cross-examination of the police officer that the applicant had been intercepted as he emerged from the premises at Flat 3B, Co-Tak Building, after which he was brought to the flat, in which were present a woman and a small girl.  It was suggested that the packet of dangerous drugs were found in a drawer of a wardrobe in a bedroom of the flat, rather than on the person of the applicant in the street.  The police officer denied that suggestion.  The judge resolved the issue of admissibility of the alleged admissions by conducting a “voir dire”.  The applicant did not testify nor did he call evidence on the special issue.

THE REASONS FOR VERDICT

4.The judge stated that having heard the evidence of three police officers on the special issue he admitted the three written records into evidence, although having done so he stated that he gave “very little weight” to the note-book entry said to have been made at the time of the arrest of the applicant in the street.  Of that, he noted that it made no reference to the nature of the offence for which the applicant had been arrested, nor the date, time and place of the alleged admissions.  Of the significance of the admissions made by the applicant in the other two written records the judge noted that the applicant admitted that he had been given the dangerous drugs an hour prior to his arrest by someone called “Wai Chai” and had been told to return them to him in Yaumatei for a reward of $500.  The judge acknowledged that the prosecution relied upon those admissions, together with the fact of the quantity and packaging of the dangerous drugs in support of the charge.

5.Of the allegations made on behalf of the applicant in cross-examination the judge determined :

“Various allegations were made against the police in relation to the statement taking and the exact place where the drugs were found, none of which was supported by evidence or even caused me to doubt the case put before this court by the prosecution.”

Of the fact that the applicant had neither given nor called evidence the judge stated :

“It proves nothing one way or the other, and it does nothing to establish his guilt.  On the other hand, it means there has been no evidence from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution.”

In the result, the judge found the applicant guilty of the charge.

THE APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

6.In his self-drafted grounds of appeal found in various communications with this court the applicant contends that a number of matters vitiate the safety of his conviction.  In order to identify them in a way by which reference can be made to them more easily in this judgment they are set out numerically :

(i) the record of interview conducted of the applicant was not video-tape recorded;

(ii) the judge did not advert to what the applicant submits is an  inconsistency in the testimony of the arresting officer PW1, namely that although he conducted the search of the applicant he did not remember having found over $20,000 on his person nor did he seize from him the bunch of keys, one of which fitted the front door to the flat at 3B, Co-Tak Building;

(iii) the judge relied upon the first written note-book entry (P5) of the police officer made in the street soon after the arrest of the applicant;

(iv) the judge relied upon the fact that the applicant did not give evidence to rebut the accusations in order to find the applicant guilty;

(v) the judge did not advert to or explain how he reconciled an apparent inconsistency between the evidence of admissions made by the applicant and the evidence of the police officers, namely that in the record of interview the applicant had asserted that he had met Wai Chai at around 9:30 a.m. on the day of his arrest in Shek Kong Street near Chatham Road, received the dangerous drugs and returned to the flat at 3B, Co-Tak Building before setting off to return the drugs to him in Yaumatei, whereas the police officers did not testify of any earlier departure or return to the flat by the applicant;

(vi) the prosecution failed to call a material witness DPC48451; the other officer present at the time and place of the applicant’s arrest; and

(vii) counsel representing him at trial conducted himself  incompetently or inadequately, so that a fair trial was not held in that :

(a) the applicant was advised that he was not required to give evidence on his own behalf; and

(b) he did not require the third police officer to give evidence as a prosecution witness or explain to the applicant why he had not been called to give evidence at his trial.

THE COMPETENCE OF COUNSEL

7.In consequence of the allegations made by the applicant against the counsel who represented him at trial, i.e. Mr Alan So, the latter was invited to respond to the allegations by affirmation or affidavit.  Mr So has done so by way of an affirmation dated 30 November 2004.  The applicant for his part has re-asserted those allegations in an affirmation dated 7 December 2004.

THE SUBMISSIONS OF THE RESPONDENT

Ground (i)

8.Of Ground (i), Ms Polly Wan in her written submissions draws the attention of the court to the evidence of PW1 at trial as to procedures within the Hong Kong Police Force regarding the circumstances in which video-recording facilities are to be used in respect of a record of interview of an arrested man.  In particular, that the permission of a Superintendent is required and that PW1 was instructed to take the interview in writing.

Ground (ii)

9.Of Ground (ii), it is submitted that the matters to which the applicant adverts were all dealt with in the testimony of PW1, he being adamant that the applicant took out a key from his person and opened the door to the flat.  Furthermore, PW1 did testify that on searching the applicant he had found money but that he had no recollection of the amount nor had he questioned the applicant about it.  These were matters of which the judge was aware in his analysis of which evidence he accepted or rejected.

Ground (iii)

10.Of the assertion that the judge had relied upon the admissions in the first written record, Ms Wan points out that in his Reasons for Verdict, the judge specifically indicated that he attached “very little weight” to them.

Ground (iv)

11.Of the implicit suggestion made in Ground (iv) that the judge had reversed the onus of proof by the judge’s reference to the absence of testimony from the applicant.  The respondent submits that the judge did no such thing, all that he did was to note that there was nothing to undermine or contradict the prosecution evidence.

Ground (v)

12.Of the contended inconsistency between the oral admission of the applicant as to his movements prior to the arrest on 10 September 2003 and the evidence led by the prosecution, it is submitted on behalf of the respondent that there was no such inconsistency.  The respondent points to the witness statement of the Detective Sergeant 13430, who adverts to having seen the applicant return to Co-Tak Building hurriedly at about 9:55 a.m. and go up to the third floor by lift, after which he left the building some minutes later.

Grounds (vi) and (vii)

13.It is submitted on behalf of the respondent that the affidavit of Mr Alan So makes it abundantly clear that the conduct of the defence of the applicant at trial was not “flagrantly incompetent” but was entirely competent, within the constraints of a strong prosecution case.  The applicant was advised to give evidence in both the special and general issue.  Further, that the prosecution’s decision not to call DPC48451 as a witness was to the advantage of the applicant, because his witness statement indicated that he fully supported the testimony of PW1.  We now turn to address both grounds of appeal. 

Grounds 6 and 7

The relevance of incompetence of counsel at trial

14.The applicant has referred this court to the decision of the Court of Final Appeal in HKSAR v. Chong Ching Yuen [2004] 7 HKCFAR 126.  In that case the Court of Final Appeal addressed the issue of the circumstances in which the misconduct of counsel for a defendant at trial might be prayed-in-aid successfully on his behalf in an appeal against his conviction.  In the judgment of Sir Thomas Eichelbaum NPJ, with whom all the other judges agreed, the issue was described thus (p.144B-C) :

“	48.	It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground of appeal, any more than if such decision had been made by the defendant personally.  Nor will other forms of mere error of judgment.
	49.	Nevertheless, the courts have recognised that in some exceptional instances, and error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.  To describe this ground, the expression ‘flagrant incompetence’ has generally been used …”

Of the critical issue of the consequence to the trial, he went on to say in his judgment (p.144J) :

“The bottom line is that to succeed an appellant must be able to show that he or she received less than a fair trial.”

15.In support of his assertion in his affirmation that he advised the applicant of his rights in respect of giving or calling evidence at his trial Mr Alan So has exhibited a “Declaration” dated 13 May 2004 and signed by the applicant.  Mr So affirms that in respect of the special issue he advised the applicant “… I strongly urged him to give evidence as he had made some serious allegations against the police officers in the voir dire preceding and that he had to give evidence to support them.”  Of the general issue Mr So affirmed that he advised the applicant that “… he would be better off giving evidence in the general issue but that the choice was his.”  On both occasions, the applicant informed Mr So that he did not wish to give or call evidence.

16.Whilst the declaration signed by the applicant addresses the issue of the applicant being advised of his rights in respect of giving evidence, it does so in a negative way, “I fully understand as to my right that it is not necessary to give evidence myself.  I also understand the advantages and disadvantages of my giving evidence.”  The declaration concludes with the statement made by the applicant, effected by way of deletion of one of two choices in a pro forma, that the applicant had chosen not to give or call evidence.  Given the popularity of this ground of appeal amongst defendants not content with their convictions, it is readily understandable why these matters are rendered into writing.  However, it would be better if such a document accurately paraphrased section 54 of the Criminal Procedure Ordinance, Cap.221, stating that the applicant had been advised that he was a competent witness in the trial and that, on his own application he had the right to give evidence, not the right not to give evidence.  Further, perhaps it ought to condescend to relevant detail in respect of the specific advice given by counsel, namely in this case to give evidence in respect of both issues.

17.We have no hesitation whatsoever in accepting the statements made by Mr So in his affirmation as to the advice given to the applicant.  That is the advice to be expected from any counsel advising this applicant in the light of his instructions and the circumstances obtaining at his trial.  We wish to make it clear that we find no substance at all in the applicant’s claim that he was advised wrongly by counsel.  Proper advice was given and the election was that of the applicant.  Similarly, we accept Mr So’s statement that he advised the applicant that it was not in the latter’s interest to have DPC48451 called as a prosecution witness, given the prospect that he would merely confirm the evidence of the first police officer.  Whilst other counsel may have advised otherwise, in the hope of demonstrating inconsistency between the two witnesses, we do not accept that the advice given could possibly be described as incompetently given.

Grounds 1, 2 and 5

18.It is apparent from the transcript of the evidence of PW1 that the issue of why the record of interview was not video-taped was raised by the judge himself.  In the course of evidence, perfectly satisfactory explanations were given in testimony, namely that the witness was ordered to take it in writing, having raised the issue of whether or not a superior officer consented to it being video-taped.  Similarly, the issues of the discovery of a significant sum of money on the person of the applicant together with keys that fitted the flat were matters raised in cross-examination.  Of the third matter, the applicant has told us today in court that PW2, the sergeant did testify that he had seen the applicant returning hurriedly to the 3/F at 9:55 a.m.  

19.It is trite law that it is not necessary for a judge to address the minutiae of matters canvassed in the trial in his Reasons for Verdict, see R. v. Chan King Man [1980] HKLR 105.  Because the judge adverted to the evidence that had been led, partly as a result of expressions of judicial surprise as to the non-execution of the search warrant of the police were possessed given that the applicant was stopped in the street, he is not to be taken not to have had regard to the issues raised in evidence described earlier.  We are not surprised that he did not find it necessary to deal specifically with those matters in his Reasons for Verdict.

Ground 3

20.The judge stated in terms that he attached very little weight to the initial note-book entry of the first oral admission by the applicant in the street.  The applicant’s criticisms in that respect are misconceived.

Ground 4

21.It is perfectly apparent from the passage quoted earlier from the judge’s Reasons for Verdict that when the judge made reference to the absence of evidence from or on behalf of the applicant, he was not thereby reversing the onus of proof and placing it upon the applicant.  In fact, he quoted directly from the standard direction of the Judicial Studies Board at paragraph 45.1.

CONCLUSION

22.Accordingly, in the result we are satisfied that there is no merit in any of the grounds of appeal sought to be advanced by the applicant and his application for leave to appeal against conviction is dismissed.

Ms Polly Wan, SGC of Department of Justice, for the Respondent

The Applicant in person