HKSAR v. Wong Hiu Man Roy

CACC 176/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 176 OF 2006

(ON APPEAL FROM DCCC NO. 53 OF 2006)

______________

BETWEEN

______________

Before: Hon Tang VP, Cheung JA and Yuen JA in Court

Dates of Hearing: 20 December 2006 and 18 July 2007

Date of Judgment: 18 July 2007

_______________

J U D G M E N T

_______________

Hon Tang VP (giving the judgment of the Court):

1.On 19 April 2006, the applicant was convicted after trial of one charge of “trafficking in a dangerous drug”, namely 11.74 grammes of a mixture containing 7.87 grammes of heroin hydrochloride, before Judge Chua in the District Court.

2.The prosecution’s case was that PW1, PC54630, and his partner, PW2, PC34488, of the Special Duty Squad 1 of Mongkok Police Station, were on an anti-trafficking in dangerous drugs patrol on 22 August 2005.  They were at Nos. 72-74, Tung Choi Street, and kept an observation on a flat on the 2^nd floor which had two entrances.  While they were between the 2^nd and 3^rd floors, PW1 saw the defendant on the 3^rd floor coming down the stairs hurriedly.  PW1 saw that he was sweaty and suspected that he might have just committed a burglary.  Followed by PW2, PW1 went up to the defendant and intercepted him.  At that time, the defendant was carrying a black shoulder bag.  It was the prosecution’s case that inside the back-zipped compartment of the black shoulder bag they found a newspaper-wrapped package which contained three plastic envelopes with pellets of drugs inside.  The prosecution’s case was that the defendant immediately told them that the drugs were not his and that he was delivering it to somebody in San Po Kong, and asked them not to arrest him.  He was arrested and taken back to the police station.

3.The defence was that the defendant had been framed by the police.  The drugs were not found in his bag at all.

4.Back at the station, PW1 made a post-record entry into his notebook (Exhibit P5), which purported to contain the admission made by the defendant at the scene.  This was signed by the defendant.  After that, PW1 took a record of interview (Exhibit P6) from the defendant.  He asked the defendant a total of seventeen questions, and he recorded the defendant’s answers.  Each answer was signed by the defendant.

5.However, unbeknown to PW1 at the time, when the defendant wrote the following statement at the end of Exhibit P5, he had added a tiny ‘not’ between ‘is’ and ‘true’:

“I, Wong Hiu-man, have read the above statement.  I know that I can correct, alter or add anything I wish.  This statement is true.  I made it of my own free will.” followed by signature.

6.As for Exhibit P6, at the end of the statement, the defendant wrote the following words:

“I’ve read the above statement.  I know that I can correct, alter or add anything I wish.  This statement is true.  I made it of my own free will.”  followed by signature.

7.Again, unbeknown to PW1 at the time, he had added the character ‘not’ between ‘is’ and ‘true’.

8.According to the defendant, the day following his release on bail he reported the matter to the Complaints Against Police Office.  On 21 October 2005, another statement was taken from the defendant by a different constable, PC52560, who after reminding the defendant of what he had written in Exhibits P5 and P6, asked the defendant the following question:

“Q(1):  After our police investigation, it was found ambiguity in the closing declarations in the cautioned statement and the record of interview which were taken by Police Constable 54630, Lau Chun-yip with you, Wong Hiu-man, on the afternoon of 22 August 2005.  Can you explain it?

A(1):   On the afternoon of 22 August 2005, for the cautioned statement and the record of interview taken with me, I did not make it of my own free will.  I don’t agree to the content.”

9.The defendant gave evidence at the trial, and he said that on 22 August 2005, he was unemployed, he went to the street behind Tung Choi Street to look for a pair of shoes.  Not finding one he liked, he suddenly remembered a friend who lived nearby.  While he was on his way up to the 5^th floor to look for his friend, he was intercepted by the two officers.  No drugs was found, but when PW1 found the defendant’s methadone treatment card for the Robert Black Clinic at San Po Kong in his wallet, he asked the defendant if he could supply them with information about drug divans.  He said he could not, he was then taken up to the rooftop.  At the rooftop he saw PW2 put a newspaper-wrapped stuff into his bag.  PW1 again asked him to provide information.  Then back at the police station, he signed Exhibits P5 and P6 after he had been threatened by PW1 that “if he insisted on playing tricks, PW1 owned two ounces of drugs which could all be given to him”.  That made him very fearful and that is why he sneaked into Exhibits P5 and P6 the character「不」.

10.The alternative procedure was adopted and the defendant gave evidence as well as the police officers, both during voir dire and as part of the general issue.  The judge did not find the defendant to be a credible witness and accepted the prosecution’s case.

11.The fact that the defendant had written the character ‘not’ in Exhibit P5 as well as in Exhibit P6, cast grave doubt on the voluntariness and truth of the two statements.  But they were not, of themselves, determinative of the voluntariness or truth of the contents of Exhibits P5 and P6.  Just as, if the defendant had written in the police Exhibit P5, words to the effect that he had not said what he was recorded by PW1 to have said but that he had been framed, that, would not be determinative of his guilt or innocence.  So here, the fact that the defendant surreptitiously wrote the character ‘not’ in Exhibits P5 and P6, could not be determinative of the voluntariness or truth of the content of those statements.  But, of course, the court must treat any such evidence with the greatest care and should only rely on the content of the Exhibits P5 and P6, and the rest of the prosecution’s case, if it is satisfied beyond reasonable doubt that Exhibits P5 and P6 were voluntarily made and their contents and the prosecution’s case were true.  If the judge was left with a reasonable doubt about any of this, the defendant should be acquitted.

12.It remained for the trial judge to determine the voluntariness or otherwise of the two statements, and just as important, the truth and credibility of the prosecution’s case.  The judge had the benefit of the oral evidence of the police officers as well as the defendant.  Here, after hearing evidence, the judge was of the view that the defence was not credible, and accepted the two statements as not only having been voluntarily made, but also true.

13.Mr H Y Wong appeared for the applicant, as counsel assigned by the Hong Kong Bar Association Free Legal Service.  We are grateful for his assistance.

14.I turn to his submission that the judge erred in her reasons for rejecting the applicant’s evidence.

“(i)     claiming that PW1 and PW2 whispered to each other before PW1 came up to the 6th floor where the Applicant was, as this was not specified in the grounds of objection: p.7 L-M Appeal Bundle;

(ii)     claiming that PW2 had asked him if he had keys and the Applicant gave PW2 his keys. The Applicant was criticised for not being asked, nor did he explain the point of such exercise as the Applicant had not been asked where he lived: p.7 Q-U, p.8 A-C Appeal Bundle; and

(iii)     claiming that PW1 in the meantime asked him to admit and when he refused, PW1 threatened him by saying ‘You stupid guy, you can choose not to admit but I have my way to incriminate you’. This was said to be not in the grounds of objections: p.8 D-F Appeal Bundle.”

15.The 1^st reason related to what the judge said about the applicant’s testimony that PW1 and PW2 whispered to each other before PW1 went back to him.  Mr Wong submitted that although this was not included in the grounds for objection, that was immaterial.  However, the judge in assessing the credibility of the applicant, was entitled to consider, whether he was prone to exaggeration, or the making up of details, to add verisimilitude.

16.As for the 2^nd reason, namely that the applicant said PW2 took his keys and disappeared for a while, the judge said that the applicant’s version of event was illogical, and he was simply making things up.

17.The judge probably put it too highly when she said that it was illogical since the police officers were staking out a particular flat of the building which they suspected of being a divan.  When they saw the applicant on the stairs and found dangerous drugs in his back, it would have been reasonable for them to take away his keys to see if they fitted the lock to the suspected divan.

18.But on the facts of this case I believe the judge was entitled to think that the applicant was simply making things up.

19.As for the 3^rd reason. Mr Wong submitted it is possible to say that a somewhat similar allegation could be found in paras. 4 and 6 of the particular in the applicant’s objection to the admissibility of his cautioned statement (transcript 41D).

20.The particulars relied on by Mr Wong are:

“4      ‘While the defendant was walking from the 6th floor up to the roof he looked downstairs and saw PC 34488 on one floor below. The defendant saw that PC 34488 was putting something wrapped by newspapers into his bag. The defendant immediately complained to PC 54630 who said that he wanted to borrow cans. That is borrow cocoons ……’ [p.40 G-I Appeal Bundle].

Paragraph 4 continued :

‘On the roof, PC 54630 said to the defendant that he would release him if he could provide him with the information of pang chai. The defendant replied that if PC 54630 agreed to release him he would help him get that information concerning the pang chai. ……’ [p.40 Q-S Appeal Bundle]

In Paragraph 6 of the grounds of objection:

‘The defendant expressed to PC 54630 that he was not able to think of any pang chai and they should not do that against him.’ [p.41 D Appeal Bundle]”

21.Mr Wong submitted that:

“When the grounds of objection were read in context, by asking the officers that ‘they should not do that against him’, the Applicant plainly was referring to two things, namely, the police officers forcing him to give information and ‘borrow cocoon’, which means asking him to admit having committed an offence.”

22.However, what the judge said was not in the grounds of objections was the statement:

“You stupid guy, you can choose not to admit but I have my way to incriminate you.”

which is a direct quotation from his evidence.

23.The judge was right that this was not in the objections.  So I do not believe the judge had made a mistake.

24.Looking at the three reasons given by the judge, although as explained, the 2^nd reason was not perhaps entirely correct, what is important is that the judge who saw and heard all the witnesses did not believe the applicant at all.

25.In any event, I do not regard the conviction to be unsafe or unsatisfactory.  The applicant had the presence of mind and skill to insert or incorporate the character「不」into the next character so as to be almost undetectable.  I do not believe it to be at all credible that the defendant would have submitted so meekly to the police framing him.

26.The applicant’s explanation for his presence at Nos. 72-74, Tung Choi Street is incredible.  If he had a friend living there, it is inconceivable that he would not have led the police officers to his friend.  On the other hand, the police officers’ evidence could not be faulted.  Of course, policemen may lie just as anybody else, so their evidence have to be scrutinised carefully, always bearing in mind that the burden is on the prosecution to prove its case beyond reasonable doubt.  The police’s case as to the arrest of the defendant, together with the content of Exhibits P5 and P6 disclosed a simple case of the defendant being caught red handed.  It also explained the defendant’s presence in that building.

27.Turning to the application for leave to appeal against sentence.

28.As for sentence, the defendant was sentenced to imprisonment for 53 months, for possession of 7.87 grammes of heroin hydrochloride.  The quantity fell within the first band of the 2 years to 5 years for up to 10 grammes R v Lau Tak-ming [1990] 2 HKLR 370.

29.The defendant produced a letter from his father which disclosed that the defendant had an unhappy childhood and he came from a broken home.  His father also said that he believed that the defendant is a good person and asked for a lenient sentence.  The defendant also asked his father to take him to see his grandmother whom he had not seen for over 10 years.  His grandmother is now 85 years old.  The defendant said that although he came from a broken home, his father and mother having separated, but they are both supportive.  He is also engaged to be married, and he has a group of friends who live normal and law abiding lives.  They would help him to get a job.  He hopes that he would be able to go back to society as soon as possible.

30.I have every sympathy for the applicant and hope that he will be able to live a normal and lawful life in due course.  But unfortunately trafficking in dangerous drugs is a great social evil in Hong Kong.  And this because of that, this kind of mitigating circumstances can carry very little weight.

31.There is nothing so special in the background of the applicant to merit any special leniency.  I would also refuse leave.

32.For the above reasons, I would refuse the application for leave to appeal against both conviction and sentence.

Hon Cheung JA:

33.I agree.

Hon Yuen JA:

34.I agree.

Ms Louisa Lai, SADPP, of the Department of Justice, for the Respondent on 20 December 2006.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent on 18 July 2007.

Mr H Y Wong, instructed by the Hong Kong Bar Association’s Bar Free Legal Service Scheme, for the Applicant, against conviction.

The Applicant, in person, against sentence.