HKSAR v. Chow Yan Hong and Another

CACC000469A/1998

CACC 469/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 469 OF 1998

(ON APPEAL FROM HCCC 131/1998)

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Coram: Hon. Mayo, Leong and Keith, JJ.A. in Court

Date of hearing: 23 September 1999

Date of delivery of judgment: 23 September 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The two applicants were convicted after a trial in the High Court before V. Bokhary, J. and a jury of manufacturing and trafficking in dangerous drugs.

2. Particulars of the charges were:

"First Count
STATEMENT OF OFFENCE

Manufacturing of a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

CHOW Yan-hong and IP Chi-wing, on or before the 21st day of October, 1997 inside Flat 2, 13th Floor, Block D, Connie Tower, No. 147, Hong Ning Road, Kwung Tong, Kowloon, in Hong Kong, unlawfully manufactured a dangerous drug, namely heroin hydrochloride.

Second Count
STATEMENT OF OFFENCE

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

CHOW Yan-hong and IP Chi-wing, on the 21st day of October, 1997 inside Flat 2, 13th Floor, Block D, Connie Tower, No. 147, Hong Ning Road, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 3,842.49 grammes of a mixture containing 2,855.54 grammes of heroin hydrochloride."

3. They now seek leave to appeal against their convictions.

4. The facts were relatively simple and straight forward. On 21st October 1997, a team of Customs and Excise Officers were keeping the premises referred to in the charges under surveillance and also the car parking area.

5. It was the prosecution case that at about 2:30 p.m. the officers intercepted both applicants. A2 attempted to escape but after a chase he was subdued. Keys were found on both men. A1 said that three of these keys found on him were the keys enabling him to gain entry to the flat referred to in the charges. He was asked if there were any prohibited articles in the flat. He replied that there were but that he "never asked anything about it".

6. Keys found on A2 opened the door of a car, registration no. GS7466, parked on the 3rd level of the car park of the building in a space allocated to the flat and one of the keys also operated the ignition. Also it was alleged that A2 said that two other keys were for access to the flat.

7. The car was searched and nothing relevant was found in it.

8. Both men were taken separately to the flat which was searched. The drugs and paraphernalia referred to in the charges were found. Also a palm print of A2 was lifted from an air-freshening can found in the flat.

9. Before A2 was taken into the flat he was asked if there were any dangerous drugs in the premises. He replied that he was aware that there were dangerous drugs in the flat. He said that he worked for others and asked to be given a chance.

10. Further questions were asked and a post-record was made of these.

11. The admission allegedly made by A1 was also post-recorded.

12. In this statement A1 admitted renting the flat. He claimed to have done so at the behest of A2. He also admitted being a party to various transactions involving dangerous drugs.

13. So far as their evidence in court was concerned both applicants denied any involvement in dangerous drugs activities. They also denied having made the statements attributed to them and said that they had only signed the post-records as a consequence of gross improprieties on the part of the Customs and Excise Officers.

14. A1 went on to say that he shared the flat with A2, although at that time he had not yet fully moved in. A2 occupied Room A in which the dangerous drugs and paraphernalia were found. He had not gone into that room and did not know about the dangerous drugs.

15. A2 claimed to have no connection whatever with the flat. His explanation for the palm print was that he had been assisting A1 with his car at a garage some days previously. As the car had been malodorous, he had given the air-freshener to A1.

16. He explained his presence on the day in question by saying that he had been assisting A1 with his car. When he was approached by the officers he had thought that they were robbers, hence his attempt to escape. He denied that any keys to the flat had been found on him. He also denied that a copy of the tenancy of the flat had been found at his home.

17. A1's first ground of appeal relates to a passage in the directions to the jury at p.33 of the appeal bundle:

"Members of the jury, let me say this to you. Each accused has given evidence contradicting the evidence of the other accused and, as I have mentioned, you may think that there is an element of finger-pointing in the witness box by each accused against the other accused. But, remember, that neither accused is here to prosecute the other. Each is here to face a prosecution's case against him, which case he denies and it is for the prosecution to prove and prove beyond reasonable doubt.

I have already told you that what an accused says against another accused in an out-of-court statement is not evidence against another accused. What an accused says against another accused in the witness box is evidence against him - against the other accused. But, in the circumstances of the present case, it would nevertheless not be safe, and I direct you not to in any way act on either accused's evidence against the other to convict the other accused.

The prosecution is not here to prosecute either accused on the basis of the other's allegations. Those allegations are made by each accused, essentially, in defence of himself, and only incidentally against the other accused. And it is the prosecution's case that both of them are guilty as charged, despite their denials."

18. The complaints made are as follows:

"(i) The said direction wrongly withdrew from the consideration of the jury a vital element of the applicants case, advanced in the course of his evidence, namely, he was not guilty of the offences wherewith he was charged by virtue of the guilt of his co-accused.

(ii) The Learned Judge diminished the effect of the applicants evidence by stating the allegations were essentially made in defence of the accused himself and only incidentally against his co-accused whereas it was a fundamental aspect of the applicants case that he was not guilty by virtue of the guilt of his co-accused.

(iii) The Learned Judge wrongly failed to direct the jury as to the possible significance of the evidence of the applicant.

(iv) The said direction wrongly indicated to the jury that there was an unusual aspect to the case which entitled them to place less weight on the evidence of the applicant than would otherwise be the case."

19. These complaints are not justified. The Judge made it very clear that the observation was not in any way intended to detract from the evidence given by each of the defendants but that the evidence should not be relied upon to convict the other accused. Such a direction was entirely favourable to the defendant who was not giving the evidence and could not be said to damage the case of the defendant who was giving the evidence.

20. It was not necessary to spell out the significance of the evidence of A1. The Judge did outline the nature of his defence and the significance of it was self-evident.

21. The second ground is that:

"2. The summing-up of the Learned Trial Judge was unbalanced and unfair to the applicant in that it set out in minute detail the prosecution case against the applicant but failed to mention in any detail the case for the applicant. Further the directions both detracted from the force of the evidence of the applicant by withdrawing an important issue from the jury (see ground 1 above) and diminished the medical evidence called on behalf of the applicant by suggesting to them that what they may feel was crucial was the impression they formed of the witnesses in the witness box."

22. The fact of the matter is that there was not a great deal that the Judge could have said in the circumstances of this case. A1's defence was that although he was one of the occupiers of the flat he had no knowledge of the existence of the dangerous drugs or the paraphernalia which was all in Room A which was occupied by A2. This was a simple issue which would either be accepted by the jury or rejected.

23. The issue of the post-recorded statement was a separate matter. In this connection the Judge gave these directions at p.10 of the appeal bundle:

"As for the post-record relating to him, the 1st accused denied making the admissions contained in it. He said that he was never cautioned, that nothing was read back to him and that he did not know what had been written. His signatures in it were, he said, procured by violence, threats, inducements and pressure.

The 1st accused told you, in answer to his own counsel's questions, that he had been in trouble with the police in the past, but that he had never been convicted of any offence in relation to dangerous drugs. Members of the jury, the fact that the 1st accused has been in trouble with the police in the past is not to be taken into account against him in any shape or form when you decide upon your verdicts relating to him."

and at p.12 and p.13 of the appeal bundle:

"Whenever you are faced with a disputed admission, the question, members of the jury, is whether you are sure that the accused made a true admission. Are you sure that the accused made it? If you are not, then ignore the alleged admission. If you are sure that the accused made it, then you are concerned with the truth of the admission. In deciding whether you are sure that any disputed admission is true, you should take into account all the circumstances in which it was made. Any pressure on an accused to make an admission lessens the reliability of any admission which the accused makes.

That applies to any form of pressure. In particular, I tell you this. Here, the allegations of impropriety made by the accused against the police officers include allegations of impropriety of a very serious nature indeed, including violence, threats, inducements and pressure. If you are unsure that any admission was made in circumstances free from improprieties of that nature, then you should give that admission no weight. If, on the other hand, you are sure that any admission was made in circumstances free from impropriety of that nature, then you may act on such admissions.

Short of violence, inducements, threats and pressure, there are complaints - denied by the police - of things like being refused a lawyer in the case of the 1st accused, and being refused medical treatment in the case of the 2nd accused. That sort of thing, even if it might be true, do not prohibit you from acting on an admission. But of course you would have to consider what effect it might have had on the admission in question."

24. These directions fully informed the jury of the matters they would need to take into account in deciding whether A1 had voluntarily made admissions and what weight should be attached to them.

25. The Judge did not read back Dr. Tu's evidence as he had recently given evidence in court. There was no dispute about A1's injuries. The issue was how they had been caused.

26. The third ground is that:

"3. The Learned Trial Judge erred in directing the jury that they were entitled if they saw fit to convict the applicant on essentially his admissions whilst having diminished the effect of medical evidence relevant to that issue called on behalf of the applicant and suggested to the jury that what they may feel was crucial was the impression they formed of the witnesses in the witness box.

The Learned Judge further failed to sum up the effect of the medical evidence called on behalf of the applicant."

27. This ground has partly been covered by previous grounds. There was nothing objectionable in the directions given to the jury. It has to be said in fairness that the summing-up was a very helpful summing-up and focused the juries' mind on the essential features of the case.

28. The case was an overwhelmingly strong one against A1 and his conviction on both counts was in no way unsafe or unsatisfactory. His application is dismissed.

29. A2's first ground of appeal is that:

"1. The trial Judge was wrong to admit in evidence the post-record of D2 (exhibit P133). The following examples, each raising a reasonable doubt, were not cured by the evidence in the voir dire.

a) that D2 should have claimed (untruthfully and to his own disadvantage) that the keys found on him opened flat 'D2, 13/F'. The evidence was that the keys seized from him DID NOT INCLUDE A KEY TO THAT FLAT.

b) why, having shown D2 a search warrant for flat D2, the arresting officer did not then further caution D2 and delay any further questioning until appropriate facilities for a formal caution interview were available.

c) why, having decided to continue to question D2 in a common corridor, the customs officer did not invite D2 to write in his own handwriting the routine certificate that should appear at the end of all records of questioning.

d) why no photocopy of exhibit P133 was supplied to D2.

e) why, having decided to ask questions in the corridor, the officer did not explain to D2 his rights under the Rules and Directions, or hand him a copy of the same."

30. It has to be accepted that a trial Judge has a wide discretion in determining whether or not to rule a statement admissible as evidence. It is only in rare circumstances that an appellate court will interfere with the exercise of this discretion.

31. It is certainly true that on the face of it, it is strange that A2 would have told the Customs and Excise Officer that the keys which were found on him were the keys to the flat in question if this was not the case. It is not however inevitable that the Customs and Excise Officer was not telling the truth. Possibly A2 himself was mistaken as to which keys were in fact in his possession. It is also possible that the officer made a genuine mistake in misunderstanding what A2 was actually saying. The important point however was whether the Judge was satisfied to the appropriate standard that the statement made by A2 was free and voluntary and in the spirit of the rules and directions for the questioning of suspects and the taking of statements.

32. These observations are also germane to the matters referred to in ground 1(b) to 1(e).

33. None of the matters are such as to give grounds for disquiet over the way in which this case was conducted. Undoubtedly the Judge would have been well aware of the requirements laid down in the rules and she would have borne these in mind when she exercised her discretion in the way she did.

34. It has been said on numerous occasions that the mere fact of non-compliance with the rules does not of itself render a statement to be inadmissible. What is required is for the Judge to take an overall view of the matter and decide at the conclusion whether the statement should be admitted. Although it was not incumbent upon her to do so, the Judge did give reasons why she exercised her discretion in the way she did. It is evident from these reasons that she was fully mindful of the matters which had to be borne in mind. This ground must fail.

35. Ground two reads:

"2. During the trial, the Judge permitted Counsel for the prosecution to introduce prejudicial evidence (e.g. the key comparison p504 F - H) which could not be wholly cured by the summing up (p33A). The suggestion by prosecuting counsel that Air-Freshener was used by D2 to 'cover up' 'drug smell' had no basis in any evidence. Again the damage done could not be replied by the summing up (p33K)."

36. This ground deals with two separate matters - one relates to the keys and the other to the air-freshener. It is true that the outstanding problem relating to the keys was never satisfactorily resolved. It can however be said that the evidence was clearly before the jury that when the Customs and Excise Officer tried the keys which were found on A2 in the doors leading to the flat they did not fit. The jury would accordingly have been aware of that fact. The Judge correctly summarised the evidence concerning the key to the gate leading to the car park. It can perhaps be added that possession of the car keys and the key to the gate to the garage was not inconsistent with the defence being run by A2.

37. The prejudice (if any) arising from prosecuting counsel's reference to "getting rid of the smell of the dangerous drugs" was fully rectified by the direction given by the Judge at p.33.

38. Ground three reads:

"3. There was no evidence that directly linked D2 to drug activities in the flat as opposed to the possibility of a mere knowledge of such activities. The comment at p31 M - P lacks logical foundation and there was no evidence that D2 had ever been in the flat (except Dl's evidence) let alone (in) room 'A' (see p10 E - H and p26 P - S ). The Judge's summary of the 'four' points of evidence of D2's connection with the flat is unfavourably balanced towards the prosecution. Each of the '4' areas had a defence 'counter balance' which should have been specifically mentioned."

39. It is accepted that the admissions made by A2 in the post-recorded statement were important. However for the reasons given in relation to the first ground the statement was properly admitted as evidence. So far as the balance is concerned, A2 was really just denying any connection with the dangerous drugs. Other than the directions relating to the post-recorded statement there was not much else which could helpfully be added. This ground is without substance.

40. Ground four reads:

"4. The Judge did not properly sum up the defence case for D2. Having recited D2's denials (p10 Q - p12 D) any benefit of that to D2 was negatived by an inappropriate direction at p34 A - E."

41. The observations made in relating to ground one of A1's Perfected Grounds of Appeal are germane here. For the reasons given there there is also no substance to this Ground of Appeal.

42. Again there was a very strong case against A2 and his conviction was in no way unsafe or unsatisfactory.

43. Accordingly these applications are dismissed.

Representation:

Mr. M.C. Blanchflower, D.P.G.C. (D.P.P.) for Respondent

Mr. Jerome Matthews & Mr. Victor Luk instructed by M/S Y.T. Szeto & Co. for 1st Applicant (A1)

Mr. John Haynes instructed by M/S Josip Ma & Co. for 2nd Applicant (A2)