R. v. Chow Chi Hing

CACC000545/1992

1992, No. 545
(Criminal)

H E A D N O T E

Criminal law - confession statements - trial judges' "residual" discretion to exclude confessions voluntarily made is extremely limited - The Queen v. Choi Tak Hing Cr.App. 382/92 applied.

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Coram: Hon. Sir Ti Liang Yang, C.J., Power and Litton, JJ.A.

Date of hearing: 28 September 1993

Date of judgment: 28 September 1993

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. This is an application by Chow Chi Hing for leave to appeal against his conviction by His Honour Judge Caird in the District Court on 17th December 1992 on one charge of trafficking in dangerous drug contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. The amount involved was 0.33 grammes of a mixture containing 0.21 grammes of salts of esters of morphine.

2. The offence occurred on 18th September 1991 in Kennedy Town New Praya where the police had mounted a surveillance operation. The applicant was originally charged with three offences of trafficking in dangerous drug all on the same day, the 18th September 1991, but was acquitted on two of them. This left the first charge on which he was convicted.

3. The case in essence was simple and was set down for two days of hearing. We note with dismay that it took the judge twelve hearing days to complete the case, stretched over a period of nearly three months.

4. The evidence against the applicant consisted of (1) the testimony of a number of police officers constituting the surveillance team; (2) the testimony of PW10 who had bought some "white powder" on that day; (3) the fact admitted by section 65(c) of the Criminal Procedure Ordinance to the effect that when PW10 was arrested he was found in possession of the quantity of dangerous drugs, the subject of charge 1 and (4) an oral admission made to a police constable PW12 by the applicant when he was arrested about an hour after the event.

5. As to (1) the testimony of the police officers: PW7 saw a person wearing a white top hand some banknotes to the applicant and this occurred at about 8.30 p.m. The applicant then in turn handed to that person something which the police were unable to identify from their surveillance point about 100 yards away. The observation was made through binoculars.

6. As to (2) the testimony of PW10: this was to the effect that on 18th September 1991 at about 8.30 p.m. he went to Kennedy Town New Praya and there he bought from a person a packet of white powder for $180. On being asked to identify the seller, PW10 said he was unable to do so as it was dark. He was then declared a hostile witness and the prosecutor cross-examined him on his police statement. This yielded no further evidence relevant to the case.

7. The way the judge dealt with this matter was odd. On the basis that the witness PW10 was "hostile" the judge said he could give no credence to his testimony. The reasons given for this are incomprehensible. This was plainly an error of law on the judge's part, for the evidence to the effect that PW10 had bought a packet of white powder and paid $180 for it was unchallenged in cross-examination. This evidence was wholly consistent with the testimony of the police officers. Demeanour alone could not have led to the evidence being totally rejected, nor did the judge give that as part of his reasons. In our judgment, the judge ought to have weighed this evidence from PW10 in the scales together with the rest of the evidence before the court.

8. As to (3) the section 65(c) admissions: what was admitted was that PW10 was arrested almost simultaneously with the transaction giving rise to charge (1) and upon his arrest he had the packet of drug in question in his pocket.

9. As to (4) the oral admission: the testimony of PW12, PC1834 Ho Siu Lung, was to the effect that at about 9.26 p.m. on 18th September 1991, he intercepted the applicant, told him that he was suspected of having sold drugs that night to PW10, cautioned him as to his right of silence whereupon the applicant said this:

"Ah Sir the things are mine but I just occasionally transfer some to my friends."

This oral statement was later-on recorded in writing and this was marked as provisional exhibit PP4, a post-recorded statement, the admissibility of which was challenged by the defence. The judge held a voir dire and eventually gave a ruling as to its admissibility. The judge dismissed all allegations of impropriety put to PW12 in cross-examination but found that there were a number of "irregularities", the nature of which we find difficult to understand. For instance, the judge said at page 121:

"First, the question of the caution, there was no reference in what was recorded as to it being taken down in writing. Each instance is in words 'you are not obliged to say anything but whatever you say may be given in evidence.' Accordingly, there is no forewarning that a written statement may be presented in an attempt to introduce such into evidence."

In the light of what the judge acknowledged was the nature of the caution actually given, the conclusion that there was no "forewarning" is inexplicable.

10. The other "irregularities" as found by the judge are equally incomprehensible. For instance:

"Secondly, there is no reference recorded that the officer was going to 'ask some questions'."

Assuming this to be an omission by the police constable, it is difficult to see how it could affect the admissibility in evidence of the recorded statement. There are other passages in the judge's ruling which we find difficulty in understanding. For instance, at page 122:

"Again (at page 346, my notes) the witness stated, 'Duty to take cautioned statement, knew he had committed offence'. This could signify a state of mind determining that because of knowledge of Defendant committing the offence, right or wrong that it was his duty to take a cautioned statement. I appreciate that this type of language is used all too often and that it may be as a result of the structure of the Chinese language. However it could also be significant of a state of mind."

The judge never explained what anxiety he harboured concerning PW12's state of mind nor how that was remotely relevant to the question of admissibility of exhibit PP4.

11. The issue before the judge was the voluntariness of the written statement exhibit PP4 as to which he said:

"On the question of voluntariness, perhaps, I have extended the concept somewhat but in any event in my discretion I would not be prepared to admit this statement into evidence because of the matters to which I have just referred to. Accordingly PP4 with its accompanying translation PP4t is held to be inadmissible."

12. The judge had no jurisdiction to extend the "concept of voluntariness" nor any discretion willy-nilly to exclude evidence which in law was otherwise admissible. A trial judge's residual discretion in these circumstances is very limited as this court has made clear recently in The Queen v. Choi Tak Hing, Criminal Appeal No. 382 of 1992, 19th March 1993 (unreported).

13. It should be emphasised that the judge in the voir dire was dealing simply with the circumstances surrounding the written statement exhibit PP4 as to which the judge said:

"In all the circumstances, I am not satisfied that this statement was given voluntarily in the sense that the witness knew what he was being asked to sign and what was being put to him that he was fully aware of his rights including his right to write down."

14. Accordingly, the judge's ruling on the voir dire left the oral admission made earlier to PW12 undisturbed. It is not clear from the Reasons for Verdict how the judge dealt with that. He found the police witnesses including PW12 honest witnesses and there was nothing inherently improbable in the fact of that admission being made. The findings of fact, if there be any, are difficult to identify in the diffuse and at times incomprehensible Reasons for Verdict, but at page 11 the judge said this:

"I am left with the 1st charge. I accept the evidence of police officers as to what they saw. I accept that PW10 was apprehended and found to have in his possession a dangerous drug in terms corresponding to the Government Chemist's Certificate. I draw the inference available to me. I believe that the Crown has made out on this charge, its case as far as trafficking is concerned."

15. Plainly, as Mr. McCoy submits, if that was the sole basis for conviction, then the verdict cannot be sustained. There would have been nothing to link the drugs found on PW10 with any activity on the applicant's part, since the police evidence did not go so far as to have identified any drugs changing hands. We are therefore left to consider whether, despite the point taken by Mr. McCoy being valid, the verdict might nevertheless be sustained by applying the proviso to section 83(1) of the Criminal Procedure Ordinance. The evidence in our judgment was overwhelming. PW10's testimony as regards his activities at about 8.30 p.m. on 18th September 1991 together with that of PW7 linked the applicant to the drugs found on PW10. There was in addition the applicant's oral admission made barely an hour later.

16. In the circumstances, leave should be given to the applicant but, applying the proviso to section 83(1) of the Criminal Procedure Ordinance, the appeal should be dismissed.

Sentence

17. This applicant also seeks leave from this court to appeal against his sentence out of time. The District Judge has imposed a sentence of 21 months' imprisonment in relation to the charge of trafficking.

18. The amount involved was 0.33 grammes containing 0.21 grammes of salts of esters of morphine. We see nothing wrong in principle in relation to the sentence nor do we feel that the sentence of 21 months for trafficking was in the circumstances manifestly excessive. There are no grounds therefore to extend the time to this applicant to appeal against this sentence and the application is accordingly dismissed.

Representation:

G.J.X. McCoy (M/S Kenneth C.C. Man & Co.) for Applicant

D.G. Saw (Crown Prosecutor) for Crown