HKSAR v. Lee Chung Ming, Murphy

[English Translation — 英譯本]
CACC 414/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

HIGH COURT CRIMINAL APPEAL NO. 414 OF 1998

(ON APPEAL FROM DCCC NO. 1055 OF 1997)

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BETWEEN

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Before: Hon Leong & Wong JJA, Woo J

Date of Hearing: 10 November 1999

Date of Judgment: 10 November 1999

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JUDGMENT

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Hon Leong JA (giving the judgment of the Court):

1. On 24 July 1998, the Applicant for leave to appeal, Lee Chung Ming, Murphy was convicted before His Honour Judge Chow in the District Court of one count of trafficking in a dangerous drug.  He was sentenced to 4½ years’ imprisonment.  He now applies for leave to appeal against conviction.

2. At about 10 p.m. on 20 July 1997 the Applicant was intercepted in the vicinity of Wun Wah House, Lok Wah Estate by two police officers, PC 53174 (PW1) and PC 48705 (PW3), who were conducting surveillance on criminal activities there.  114.64 grammes of a mixture containing 30.69 grammes of heroin hydrochloride were found on the Applicant.  The said mixture was contained in plastic bags found inside six cigarette packets.  When the drugs were found on him, the Applicant asked the police officers to give him a chance and not to arrest him, but the two police officers went on to arrest him.  Under caution, he again asked the officers to give him a chance and said he was merely “making a living”.  Later, a team of police officers conducted a search at the Applicant’s residential premises at Room 2905, Block C, Wun Wah House.  Apart from 24 plastic bags of the same type, the police officers did not find any other item of suspicion.

3. The Applicant was then taken to Mongkok Police Station.  There PW1 interviewed the Applicant and, in the Record of Interview, post-recorded the circumstances of the arrest of the Applicant.  After the post-recording was completed, the Applicant wrote down the following: “I agree to the foregoing contents stated by Ah Sir.  The white powder was for my own consumption only!  I beg Ah Sir for a chance!  I beg you not to charge me with drug trafficking!  I do not want to say anything else.”  At trial, the Applicant objected to the prosecution adducing this Record of Interview as prosecution evidence.  He testified that the police officer did not find on him the dangerous drug involved in the case and that he did not make the above cautioned statement voluntarily.  He said when he was intercepted that night, the police officers asked him how much dangerous drug he had.  He answered that he only had a little more than two ounces of drug and that it was for his own consumption.  The police officer did not believe him and told him to surrender the drug trafficker, saying that if he did so, he would be released.  After that, a police officer grabbed his lower parts tightly and told him to make a decision promptly.  Later, police officers took him to the staircase at Wun Wah House.  Inspector Ting Chi Kwok (transliteration), who led the team, asked him whom he had in mind to surrender.  He was also told to look for the “distributor” and say that he wanted to buy dangerous drug.  But when he found the “distributor”, the “distributor” said there was no stock.  The police officers then went to his home to conduct a search and took down his mother’s identity card number.  After that, he was again asked to supply information of the drug trafficker, and he was unable to do so.  He was then brought inside the elevator and assaulted by the police officers, resulting in injury to his abdomen.  He said what he had written down, especially the sentence which asked the police officer not to charge him with drug trafficking, was dictated to him by the police officer.  When the officer noticed that what he had written down did not accord with what the officer meant, the officer then slapped him on the face.

4. After evaluating the testimony of the police officers and of the Applicant, the Judge was satisfied that the dangerous drug in question was found on the person of the Applicant upon search and that the statement of the Applicant was made voluntarily by him to the police.  The Judge did not believe the police officer dictated the statements and compelled the Applicant to write them down.

5. The first ground of appeal contends that the sentences in the Record of Interview that the Applicant agreed to the contents of the post-record and that he asked the police officers to give him a chance and so on, were all written down when he was not under caution.  Mr. Kwok, Counsel for the Applicant, submits that this amounted to asking the Applicant to admit guilt in the absence of caution, and that the Judge erred in failing to consider this point.  Counsel also submits that, having ruled that the Record of Interview was voluntary, the Judge should have gone on to consider whether he should exercise his discretion not to admit the said Record as part of the prosecution evidence.

6. On the facts, the Applicant was arrested at 11.55 p.m. on 20 July.  On the following day, that is at 2.30 a.m. on 21 July, PW1 interviewed the Applicant.  A mere 2½ hours elapsed from the time of arrest to the time of interview.  The Applicant must still have had a clear idea of his right of silence, otherwise he would not have written at the end of the paragraph: “I do not want to say anything else.”  The relevant rules on the taking of statements from suspects do not provide that, after post-recording the arrest and cautioning processes, the police officer must caution the suspect again before asking the suspect whether he agrees to the post-recorded contents and before the suspect signs the statement.  The Judge did not explain in detail in his Reasons for Verdict why he admitted the Record of Interview as evidence.  However, after evaluating the evidence, he ruled that the Record of Interview could be adduced as prosecution evidence.  This shows that he must have believed that the Record of Interview was made voluntarily by the Applicant.  There were no special circumstances in this case that justified an exercise of discretion to refuse to admit the Record of Interview.  Generally speaking, a judge is not required to set out in detail the reasons for admitting or rejecting the Record of Interview as evidence.  This legal principle is well-established and supported by authorities.  Therefore, the first ground of appeal fails.

7. The second ground of appeal contends that, in relation to the Applicant’s good character, the Judge had not directed himself to consider the Applicant’s credibility and propensity to commit crime.  The Judge made it clear towards the end of the Reasons for Verdict that he was aware that the Applicant had a clear record.  He said, “I am aware that the Defendant does not have any criminal record.  But a good character direction is not applicable in this case because the Defendant in fact does not have a good character.  The main reason is he has admitted to possessing ‘two ounces odd’ of dangerous drug and has admitted that he is a drug addict.  Previously, before 20 July, he has taken dangerous drug.”  Counsel for the Applicant submits that these words indicate that the Judge had not dealt with the evidence of the Applicant’s good character in accordance with the law.

8. In Tang Siu-man v. HKSAR[1998] HKLRD 350, Mr. Justice Litton PJ made the following comments on the law regarding good character directions.  His view was that, if at the trial of a defendant with no criminal record, information on the good faith of the defendant was disclosed, the judge had a discretion to assess whether the defendant was of good character.  The primary consideration was that the judge’s self-direction must be fair and balanced.   Applying that principle and taking the facts of this case as a whole, the Applicant having admitted in court to taking and possessing dangerous drug, the Judge was certainly entitled to exercise his discretion to assess whether the Applicant was of good character.  That the Applicant in fact did not have a good character was a conclusion that the Judge arrived at in the exercise of his discretion.

9. We take the view that people of good character are not confined to those who do not have any criminal record.  In the case of the Applicant, we agree that a good character direction was not applicable.  We cannot detect any error in the Judge’s decision in this respect.

10. The third and the fourth grounds of appeal are as follows: PW2, PC 50508 had testified in another case.  His testimony was not accepted by the judge, and in the end the defendant in that case was acquitted.  Following that case, PW2 was charged with perjury.  At the time of trial of the present case, PW2 was awaiting trial of that perjury case.  The Applicant contends that there were grave doubts about PW2’s credibility.  According to the facts of the case, on the night in question, PW2’s involvement in the case was limited to conducting surveillance in the vicinity of Wun Wah House and participating in the search of the Applicant’s premises. PW2 was not involved in the arrest of the Applicant.  When the Applicant made the verbal admissions in question after the arrest, PW2 was not present either.  When PW2 was notified and arrived at the scene, the Applicant had already been arrested and handcuffed.  Therefore PW2 had no significance in the present case.  The fact that PW2 was the defendant in a perjury case should not have affected the ruling of the Judge.  Counsel for the Applicant contends that the Judge had stopped him from cross-examining PW2 in detail about the perjury case.  Having studied the relevant transcript, we are of the view that the Judge had not obstructed the cross-examination by Counsel for the Applicant in this respect.  In fact, in the perjury case, PW2 was acquitted after trial in the District Court.  PW2 had not been found to be an untrustworthy person who had committed perjury.  Therefore, this matter would not have affected the Judge’s assessment of PW2’s credibility.

11. The other grounds of appeal contend that the prosecution had failed to disclose to the defence that there had been complaints against PW2, PW3 and PW5 for failure to discharge their duties.  The materials furnished to us by the prosecution show that the complaints concerned were received in June and September 1997.  The recommendation of taking disciplinary action against the three witnesses, the disciplinary hearing and the outcome thereof were all subsequent to the trial of this case, which took place on 24 July 1998.  The result of the disciplinary hearing was that the three witnesses had not been in breach of the relevant rules.  In other words, the investigation committee found that the complaints had not been established at all.

12. Counsel for the Applicant contends that at trial the prosecution should have disclosed to the defence that the three police officers were subject to a disciplinary hearing and that the Judge, having been informed of this, should have adjourned the trial until after the conclusion of the disciplinary hearing.  Counsel for the Applicant contends that the prosecution’s failure to disclose the above fact represented a failure of the prosecution to discharge its duty to provide relevant information to the defence.

13. It is true that, in principle, the prosecution has a duty to provide the defence with materials which may affect the prosecution evidence or support the defence case, so that the defence can cross-examine the prosecution witnesses on that basis in order to test their credibility, and so that the trial judge can be made aware of the background of the witnesses, which may have a bearing on his assessment of their credibility.  In our view, however, if the materials are beyond the knowledge or control of the prosecution and hence the prosecution is not in a position to provide such information, then the prosecution cannot be said to have failed to discharge its legal duty.

14. In the present case, at the commencement of trial, the information in the possession or knowledge of the Prosecution was limited to the complaints against the three police officers.  The prosecution could not possibly disclose whatever that might happen subsequently.  The contention that the prosecution had not discharged its duty is simply unsustainable and cannot form the basis for saying that the Judge’s verdict was erroneous or that the conviction was unsatisfactory or improper.

15. We take the view that the evidence in the present case, once accepted by the Judge as true, is sufficient to support the Applicant’s conviction.  Indeed, the Judge had not harboured any doubt about the prosecution’s evidence.  We consider the conviction unassailable and in no respect unsatisfactory.  The application for leave to appeal is accordingly dismissed.

Mr. A Luk, Deputy Director of Public Prosecutions and Ms. C Ko, Senior Government Counsel, for the Respondent.

Mr. Eric Kwok, assigned by the Legal Aid Department, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor