HKSAR v. Li Lai Hung
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CACC371/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 371 OF 2004 (ON APPEAL FROM DCCC 492 OF 2004) --------------------- BETWEEN
---------------------- Before : Hon Stock JA, McMahon and Lunn JJ in Court Date of Hearing : 20 December 2006 Date of Judgment : 20 December 2006 ------------------------ J U D G M E N T ------------------------ McMahon J (giving the judgment of the Court) : 1.The applicant was convicted on 17 August 2004, after a trial before Judge Longley in the District Court, of an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. 2.The prosecution case against the applicant was that he had been searched by police officers in the early hours of the morning in a lane in Yaumatei and 22 grams of heroin and 196 tablets of midazolam were found in his clothing. The applicant was refused leave to appeal against his conviction by a single judge on 6 April 2005. He now seeks leave to renew his application out of time. 3.The unrepresented applicant’s home-made grounds of appeal as presented partly orally to us today, can be summarized as follows :
The applicant abandoned a number of earlier grounds of appeal alleging, inter alia, negligence on the part of his solicitors. 4.The applicant’s application to renew his appeal was made by notice dated of 5 September 2006, more than one year and four months out of time. By an affirmed statement on that day the applicant’s sole reason for the delay in making his application was that :
He says today additionally he was subsequently prompted to renew his application after reading in a newspaper of a successful appeal of some sort to the Court of Final Appeal. 5.Before us he gave no better reasons for his failure to renew his significantly out-of-time application, and given the period of the delay we see no merit in his reasons, nor do we see any merit in his grounds of appeal. 6.He complains firstly that the trial judge refused to accept as evidence photographs of the lane in which he was arrested. Those photographs had been taken by the solicitors firm representing him at the time of his trial. The purpose of their production was to prove that the lighting conditions in the laneway at the time of the finding of the drugs were too dim for PW1 and PW2, the arresting officers, to have seen the applicant behaving suspiciously in the laneway as they said they had. The applicant in this ground of appeal and in his submissions suggests that the photographs were not admitted into evidence. On the material before us, the position is unclear. The judge initially allowed the photographs to be provisionally admitted though they appeared to have been later fully admitted as exhibits and given an exhibit number. But whatever the position in that regard, the judge was right not to accept them as probative evidence. They were, after all, photographs of a night scene taken some four months after the arrest of the applicant and necessarily must have been most unreliable evidence of the state of lighting in the laneway four months earlier. We might add that both PW1 and PW2 in evidence described the lighting conditions in the lane as adequate at the time of the arrest of the applicant and gave evidence of the nature and source of the lighting. There can be no complaint about the judge’s acceptance of their evidence in that regard. 7.The applicant’s 2nd and 3rd grounds are completely without merit. The computer record of the applicant’s arrest while not made by the duty officer was made under his supervision. There was no reason not to admit that record. Such a record is kept for police administrative purposes, it does not form any part of the investigative process. It is not kept to record admissions or denials made by an arrested person. There is however, as we understand it, a requirement that any complaint of the arrested person as to his being mistreated while in custody be recorded. No such complaint was recorded in that computer. 8.The 4th ground of appeal asserts the judge was mistaken as to the applicant not complaining to the duty officer about his mistreatment at the hands of PW1, the arresting officer. The applicant alleged that he had been induced to sign PW1’s notebook entry of the applicant’s statement at the time of arrest by being mistreated and in particular by being promised bail. In his reasons for verdict the judge commented :
The reason for that comment was that at the conclusion of the applicant’s evidence, the judge had asked the applicant whether he had complained to anyone at the police station. This exchange had occurred :
In re-examination by his solicitor, this exchange then occurred :
9.It was quite obvious this particular allegation of the applicant concerning the duty officer arose at the last moment of the applicant’s evidence on the special issue in response to questions by his solicitor in re-examination and had occurred after the duty officer had given his evidence. The applicant’s solicitor did not seek to recall the duty officer. That was a decision he was entitled to make given the late stage at which the allegation had surfaced and the existence of the duty officer’s computer record showing no complaint had been made. It is quite clear that the judge had correctly understood this evidence and his comment was not mistaken. 10.The applicant’s final complaint is that the judge wrongly admitted into evidence the applicant’s admission contained in the arresting officer’s notebook. He says in particular that the prosecution case on the special issue failed to properly account for the fact that the relatively short entry in the officer’s notebook took, from the times recorded in it, some 52 minutes to complete. The applicant points also to the fact that he was interviewed by one officer only, with no witnesses. He says these matters supported his case that he had been forced and induced to sign the entry in the notebook. 11.The applicant’s solicitor had cross-examined both PW1 and PW2 on both these matters. The judge no doubt took them fully into account in arriving at his determination that the notebook entry was admissible in evidence and we do not find anything on the face of either of those two matters which would give rise to any concern as to the admission of the notebook. 12.For the above reasons, namely that no sufficient explanation has been provided by the applicant for his application to renew his appeal against conviction being out of time and the lack of merit of his grounds of appeal, we refuse the application. Loss of time Ruling 13.This application was wholly without merit and it is renewed in the face of a refusal of leave by a single judge, and that judges reminder of the court’s power to order a loss of time. 14.Pursuant to the provisions of section 83W of the Criminal Procedure Ordinance, we direct that 3 months of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term to which he is subject as a result of the conviction under appeal.
Mr Kevin P. Zervos, SC, SADPP of the Department of Justice, for HKSAR Applicant in person | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||