HKSAR v. Chan Kwok Chuen

CACC1/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 1 OF 2008

(ON APPEAL FROM DCCC NO. 799 of 2007)

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Before: Hon Stuart Moore VP, McMahon and Wright JJ in Court

Date of Hearing: 12 September 2008

Date of Judgment:  12 September 2008

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J U D G M E N T

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Hon Wright J (giving the judgment of the Court):

1.The applicant seeks leave to appeal his conviction, after trial by Judge Toh in the District Court, on a single count of trafficking in a dangerous drug, 8.89 grammes of methamphetamine hydrochloride.  He was sentenced to serve a period of six years imprisonment.

2.The prosecution's case was straightforward:  the police were in possession of a search warrant in respect of certain premises; the applicant was observed entering the building where those premises were situated; he was followed into the building by two police officers who intercepted him on a staircase landing; he was searched; in a bag in his possession were found the dangerous drugs; in his pocket was a bunch of keys; he was questioned about his presence and replied that he was visiting a friend but when asked the identity and residence of the friend, the applicant gave no answer; he was arrested and cautioned, in reply to which he said "Ah sir, give me a chance.  I just wanted to earn money, help someone to drag something here";  the police used the keys found in his pocket to see whether they afforded access to the suspect premises but they did not; the police took no further interest in those premises and did not execute the search warrant; the applicant was taken back to Sham Shui Po police station where a written record of the response to the caution was made and signed by the applicant as correct; he then consented to and participated in another interview which lasted some 90 minutes, in the course of which the applicant made further unequivocal admissions, the record of which he subsequently signed as correct.

3.At trial the applicant sought to challenge the admissibility of both sets of answers given by him.  The judge determined that issue by way of a voir dire.  In the course of his evidence the applicant denied that he had made any admission at the scene; he denied that the drugs were found on him but, rather, asserted that they had been found inside the suspect premises; he said that he had been assaulted by the police; he said that he had been threatened by the police; he said, amongst other things, that although he had signed the record of the interview in the police station he had been given no opportunity to read it before doing so.

4.The issue of admissibility was determined by the judge after assessing the credibility of the witnesses.  She was justified, for the cogent reasons which she gave, in rejecting the applicant's evidence and accepting that of the prosecution witnesses. Once the records of the applicant’s admissions were admitted in evidence, conviction assumed an air of inevitability.  The applicant gave evidence on the general issue also: the judge disbelieved him.  Unsurprisingly, she convicted the applicant.

5.The grounds of appeal are said to be three: that the judge erred, first, in not having sufficient regard to the fact that the police did not enter the suspect premises and that the applicant was released on bail without charge on the same day of his arrest; secondly, in failing to consider the applicant's evidence in the light of his defence; and, thirdly, in forming the view that even if the applicant's version that he was let out on bail because he offered to obtain information for the police be true, that fact did not absolve him from criminal liability for trafficking in the drugs concerned.

6.Each of these grounds has no merit.

7.There was nothing "inherently improbable", as the applicant suggests, in the police not entering the suspect premises: the judge accepted, as she was entitled to having found the prosecution witnesses to be truthful, that they saw no purpose in doing so once the applicant had been arrested in possession of the drugs.  It is worth noting that, in any event, they attempted to gain entry using the keys found on the applicant but those keys did not fit the locks.

8.Between 1982 and 1991 the applicant was convicted of three offences involving dangerous drugs of which one was for trafficking.  He had no further convictions involving dangerous drugs in the intervening 15 years.  The quantity of drugs found on the applicant, whilst sufficient to attract a sentence of six years imprisonment, was not especially large.  It is certainly within the realm of experience of the members of this court that people found in possession of similar quantities of drugs may be released on bail.  The judge considered and, as she was entitled to do, rejected the applicant’s assertion that he was released on bail because it had been arranged that he would continue his role as police informer and that he had concluded a “deal” with the police.  He was released, we note, only after the police had concluded their investigations, including a search of the applicant’s residence. No application was made by the defence, at trial, for the police officer who made the decision to grant the applicant bail to be called. We see no sensible ground for suggesting that the prosecution should have called him as a witness: they were entitled to take the view, correctly as it turned out, that they were able to prove their case without his testimony.

9.In regard to the second ground, the judge plainly properly considered the applicant's evidence before concluding that what he said was nonsensical.  She set out cogent reasons for her finding.

10.The third ground relates to an observation by the judge and not any finding of fact or law.  It is, in any event, correct.

11.The application is dismissed.

Ms. Anthea Pang, SADPP, Department of Justice, for Respondent

Mr Paul Leung inst’d by M/s Cheung, Chan & Chung for the Applicant