HKSAR v. Tsui Siu Lin and Another

CACC000497/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 497
(Criminal)

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Coram: Hon. Power V.-P., Leong and Rogers, JJ.A. in Court

Date of hearing: 22 April 1998

Date of delivery of judgment: 22 April 1998

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The two applicants were convicted by a jury of trafficking in a dangerous drug. The quantity of drug was 99.87 of a mixture containing 91.26 grammes of heroin hydrochloride. They were each sentenced to 6 years' imprisonment. They now apply for leave to appeal against conviction.

2. The grounds of appeal are:

1. The trial judge erred in directing the jury that the verdict was either trafficking or nothing and it was not open to them to return the alternative verdict of simple possession.

2. The trial judge failed to direct the jury that they must be sure not only the statements of the applicants were true but also consistent only with the intention to traffic.

3. The trial judge failed to direct the jury on the evidence that the applicants only intended to purchase a small quantity for their own consumption and they got more than they expected. Their intention was to return the excess to the trafficker and that cannot amount to trafficking.

4. In the case of the 1st applicant, the trial judge having ruled out her post record and record of interview, should also exclude her oral admission at the scene. The trial judge was wrong in failing to rule on the admissibility of this oral admission.

3. Finally there was a general ground that the convictions are unsafe and unsatisfactory.

4. The prosecution evidence as summed up by the trial judge is this:

5. The two applicants were seen hurrying along Ngau Tau Kok Road towards a park by two police officers on plain clothes duty (PW1 and 2). They were seen to have stopped at the railings of the park and the 1st applicant was seen to have squatted down for ten seconds and then get up. Both then hurried away. The officers shouted to them to stop but they ran. In the end, the officers intercepted them. On being questioned by PW1, the 1st applicant produced from the top of her trousers a white bag in which the drugs in question were found. When she was asked what that was, she said "Sir, they are white powder". When she was cautioned for trafficking in dangerous drugs, she said "Ah Sir, it's nothing to do with me. I just intend to get a 'quarter' while I will return the others to the person."

6. The 2nd applicant was with the 1st applicant when intercepted by PW2. When PW2 arrested her for trafficking in a dangerous drug, she said: "We have nothing to do with it. We intend temporarily hide the 'white powder' and return it to others later. Don't arrest me." Under caution, she said : "I and Ah Lin intend to come to get a 'quarter' of white powder for personal consumption. We don't even know there is so much stuff. We are also shocked to find such a large pack of 'white powder'. We intend to take it home first and return it to others later." After the 2nd applicant was taken back to the police station, the 2nd applicant was interviewed. Her oral admissions were post recorded in the record of interview. In this record of interview which the 2nd appellant had signed, she admitted that she and the 1st applicant contacted a person KO Lo-kwan to purchase drugs. They were instructed by Ah Kei, an assistant of KO Lo-kwan to pick up the drugs themselves after the 1st applicant paid $2,100. They both then went to the park where the 1st applicant picked up the packet. They only intended to buy a "quarter" but when they found the packet contain so much dangerous drugs, they intended to take them home first and later return to KO Lo-kwan because they were afraid that they had to pay for the excess quantity of drugs.

7. The trial judge in his summing up, told the jury about the prosecution case in these terms:

".... The case against these accused, is that the drugs, which are contained in Exh.P1 were found in the possession of the 1st defendant who said what she intended to do with them and that the 2nd defendant also said at the scene, and later on at the police station, words which indicated that she was in joint possession of the drugs with the 1st accused and had a similar intention as to what was to be done with them."

8. The judge added that:

"The prosecution is relying in order to prove trafficking and the purpose of trafficking, entirely on the evidence of the police officers as to what the accused told them of their intentions."

9. Thus, the jury was therefore left in no doubt as to the importance of the evidence of the two officers PW1 and 2 in the prosecution case.

10. The 1st applicant did not give evidence. She called a witness, a PC46120. The evidence of this officer is that he had passed information on two traffickers "KO Lo-kwan" and "Ah Kei" to the inspector who was in charge of the operation during which the two applicants were arrested. The suggestion was that the two police officers had this information when they arrested the applicants and based on this information, fabricated the case against them. The 2nd applicant's evidence is that she and the 1st applicant were arrested when they were walking in the street. She denied having said what was post recorded. She said she was induced to sign the post record and to write down in the record of interview matters fabricated by the police.

11. The defence of both applicants is therefore a complete denial that the drugs had been in their possession nor they knew anything about the drugs and they had not made the admissions said to have been made by them. The whole case is fabricated by the police against them.

12. Before the jury was empanelled, the trial judge conducted a voire dire in which the admissibility of the post record of what the 1st applicant said at the scene in a record of interview was challenged. The admissibility of the 1st applicant's oral admission was not challenged. In the voire dire, the admissibility of the oral admission of the 2nd applicant, the post record of her oral admission and her record of interview was also challenged. In the end, the trial judge excluded the post record and record of interview of the 1st applicant but he admitted the oral admission, its post record and the record of interview of the 2nd applicant. It was then that counsel for the 1st applicant invited the trial judge to exclude the 1st applicant's oral admission on the ground that if the trial judge excluded the post record, logically the oral admission should be excluded since the same officer heard the oral admission as well as afterwards made the post record. But this was rejected by the trial judge on the ground that the issue as to whether there was such admission and what weight should be given to it was a matter for the jury.

13. On the 1st ground on the question of alternative verdict, the judge had told the jury in these terms:

"If you were satisfied as to the accuseds' possession of drugs but not of their intention to deal with them, as they are reported to have said, you would be able to convict them or either of them of the lesser offence of possession of a dangerous drug. What we commonly call simple possession. There is an express power provided in the Dangerous Drugs Ordinance for a court or jury to find that statutory alternative offence proved and to find a person guilty of it."

14. Then on whether the jury could convict on the alternative verdict, the judge went on to say this:

"If you do not believe that the 1st defendant said the words that PW1 the first prosecution witness has reported, then I do not see how you can believe the rest of his evidence, including that the 1st defendant producing the drugs from the top of her trousers. If you do not believe that the 2nd accused said the words which the second prosecution witness reported, then it wouldn't be open to you to find that she had the necessary knowledge and intention to be in joint possession of the drugs with the 1st accused.

So it's an all or nothing case, either you will convict of trafficking or you will acquit of trafficking. The alternative, while technically open to you is, I think in this case, logically impossible ..."

15. What the judge told the jury in this context was the evidence that the applicants made the admissions and that they were in possession of the drugs were so intertwined that if they rejected the evidence that the applicants had made the admissions, they should also reject the evidence of possession, in which case there should be an acquittal. If they accepted the evidence, the only verdict they could return was one of trafficking.

16. In the light of the defence of the applicants which was an out right denial and allegation of fabrication, the judge was entitled to direct the jury that if they were sure of the prosecution case, it was a case of trafficking. There is nothing in this ground of appeal.

17. On the 2nd ground, it is not disputed that the trial judge had correctly directed the jury that they had to be sure that the admissions made by the applicants were true before they could rely on them. The complaint is the trial judge did not go further to tell the jury that they must also be sure that what the applicants said meant they intended to traffic in the drugs. The answer to this is if the jury were sure that the statements were true, they could rely on them and what inference they drew was a matter for them. The judge had told them that they must be sure that the drugs were in the applicants' possession and the applicants intended to traffic in the dangerous drugs before they could convict. The jury was therefore left in no doubt that they must be sure that the applicants' admissions meant trafficking before they could convict. Given the conviction, they must have been satisfied that the applicants intended trafficking in the dangerous drugs. This ground also fails.

18. On the 3rd ground, the prosecution case is that according to their admissions, the applicants intended to purchase a "quarter" of dangerous drugs but they picked up more than they had purchased and they intended to return the excess to the trafficker. It is submitted that the excess quantity of drugs did not belong to the applicants and what they intended to do with the drugs was to keep them for the time being and to return them to the trafficker and that did not amount to trafficking and the trial judge should have directed the jury accordingly.

19. The trial judge in his summing up referred to the definition of "trafficking" in the Dangerous Drugs Ordinance which states that trafficking in relation to a dangerous drug includes ".... Procuring, supplying, or otherwise dealing in or with the dangerous drug." He added:

"this definition of procuring, supplying or otherwise dealing in or with the dangerous drug is, I think sufficient to cover any action of passing dangerous drugs from one person to another."

20. We agree that the definition of "trafficking" covers any act of returning the drugs to the trafficker. It is trafficking if a person conveys or delivers dangerous drugs in his possession to another. Keeping it in safe custody in order to return to the trafficker is trafficking except when it is intended to return to the police. Whether he is the owner of the drugs is immaterial. The judge's summing up cannot be faulted. The 3rd ground thus fails.

21. The final ground relates to the 1st applicant. It is submitted that the trial judge having excluded the post record and the record of interview of the 1st applicant should have also excluded the oral admission of the 1st applicant at the scene. The complaint is also that the trial judge should have conducted a voire dire in respect of the oral admission. Counsel for the applicants relies on the Privy Council case of Thongjai [1997] HKLR 678. It is submitted that since the case of Thongjai, the judge must hold a voire dire where there was an oral admission by the defendant and his defence is he had not made it and he had been ill treated when the alleged admission was made. That certainly is the law but the present case is not one which falls within the principle in Thongjai.

22. In Thongjai, Lord Hutton in his judgment referred to R v CHEUNG Hon-yeung at p. 677 in these terms:

"In his judgment in R v CHEUNG Hon-yeung [1993]1 HKCLR 292 (with which Power J.A. agreed) Macdougall J.A. stated, at pp.304-305:

'Where an accused person denies that he made an oral admission at the time of arrest, and alleges that he made an involuntary written statement after the police officer concerned had made a post recording of the earlier non existent oral admission, it is then the function of the judge to hold a voire dire to determine whether the written admission made was made voluntarily. Although, in the process of doing so, the judge will almost invariably hear evidence as to all the circumstances leading up to the making of the written admission, including those of making the alleged earlier oral admission, no issues as to the voluntaries of the oral admission can arise. Since the accused contends that he did not make the oral admission he cannot be heard to say that it was involuntary. The only issues that arise in respect of the alleged oral admission are, first, whether it was made and second, if so, what weight should be given to it. Where the trial is before a judge and jury, it is the function of the jury to decide whether the oral admission was made and if so what weight they should attach to it. Whatever view the judge might have formed of the testimony of that officer in the course of the voire dire held to determine the issue of admissibility of the written admission, the issues relating to the oral admission remain exclusively within the province of the jury to resolved.'

... In the context of the case where as Macdougall J.A. stated there was no suggestion by the defendant of threat or inducement or other impropriety by the police at the time of the alleged oral admission, it was correct for Macdougall J.A. to state that the only issue was whether the oral admission had been made, and if so what weight should be given to it ..."

23. Thus, despite the authority of Thongjai, where it is alleged that a defendant has made an oral admission, but he denies making it and where there is no allegation of impropriety or threat or inducement at the time when the oral admission was alleged to have been made, it is not necessary to hold a voire dire on the admissibility of the oral admission.

24. No allegation of impropriety on the part of the police at the scene had been made by the 1st applicant at the voire dire or at any stage of the proceedings nor is there any evidence to that effect or from which such inference may be drawn. The admissibility of the oral statement of the 1st applicant was challenged only at the very last stage of the voire dire on the written statements. Even at that stage it was not a challenge as to its voluntariness. The trial judge was only invited to exclude it in exercise of his discretion on the ground that the judge having excluded the post record and the record of interview must have entertained a doubt on the credibility of the officer concerned. In these circumstances the present case is one falling within the circumstances contemplated in CHEUNG Hon-yeung. The judge was correct not to have excluded the 1st applicant's oral admission and instead to have left it to the jury to decide on the issue of whether it was made by the 1st applicant and if so, what weight to attach to it. The 4th ground therefore fails.

25. In these circumstances and for the reasons stated above, the conviction cannot be regarded as safe and unsatisfactory. The application for leave to appeal against conviction is dismissed.

Representation:

Ms Denise CHAN, S.G.C. for Respondent

Mr. Geoffrey Watson, assigned by D.L.A. for both Applicants