HKSAR v. Chan Kwok Wah

CACC 276/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2008

(ON APPEAL FROM DCCC NO. 275 OF 2008)

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BETWEEN

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Before : Hon Stuart-Moore V-P, Stock and Yeung JJA in Court

Date of Hearing : 20 March 2009

Date of Handing Down Judgment : 3 April 2009

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J U D G M E N T

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

Introduction

1.On 31 July 2008 the applicant was convicted after trial by Judge D’Almada Remedios in the District Court of three offences:

(1) that on 27 January 2008 in Hung Hom he unlawfully trafficked in 21.22 grammes of cocaine;

(2) that on the same day and at the same place he had in his possession 5.51 grammes of herbal cannabis; and

(3) that on the same day and at the same place he assaulted a police officer in the due execution of that officer's duty.

2.For these offences, the applicant was sentenced to a total of five years six months and one weeks imprisonment.

3.The applicant now seeks leave to appeal against each conviction.

The evidence

4.The evidence falls within a narrow compass and has been summarised succinctly by the judge in her Reasons for Verdict:

“5.     The prosecution case in summary alleges that when a police officer, PW2, attempted to stop you [the applicant] at the location in the charge sheet [Hung Luen Road, Hung Hom, near the Harbourfront Horizon Hotel] you attempted to flee by first pushing PW2 on his chest, then you ran.  He caught up with you and you struggled with him, and thereafter you pushed him into the iron railings on the pavement causing him to sustain injury to his hand.

6.       PW3 and 4, other police officers in the vicinity, then came to PW2’s assistance and you were eventually subdued.  A body search was conducted on you.  PW3 found in your jacket pocket that you were wearing the cocaine, as described in Charge 1, which was contained in 72 small plastic bags.

7.       Upon further search of your body, a set of keys were also found.  They were keys to a motorbike parked on the pavement very close to where you were apprehended by the police officer and, with the use of one of the keys, PW4 opened a locked compartment situated under the seat of the motorbike and found the cannabis described in Charge 2.

8.       The defence case.  It is alleged by you… that you never assaulted the police officer, PW2.  Further, that you never had in your possession the cannabis and cocaine.  The cocaine was never found in your jacket pocket or on your body.  You had never seen the drugs until the police officers showed two packets to you, and that was only after you were stopped and had a body search.

9.       You accept that the motorbike key was found in your possession, but you had no knowledge of the contents of a locked compartment in the motorbike, but for the fact that you placed your crash helmet in the compartment that evening.”

The police evidence

5.There are six grounds of appeal.

6.The case depended upon the credibility of the evidence of three police officers, PW2, PW3 and PW4.  The clear implication of the applicant’s testimony was that he had been framed by the police officers.  This contention was much in the judge’s mind and she devoted a number of paragraphs to an analysis in this regard; in one of which she said that none of the police officers had seen the applicant before, that they were “experienced police officers who have been in the police force for some time”, and that “should they conspire to fabricate evidence against you [the applicant], they would have a lot to lose.”  (Emphasis added).

7.It is the emphasised passage of which Mr McGowan on behalf of the applicant complains (Ground 1).  We agree that, on its face, the comment is an odd one and sits ill with the unfortunate fact that from time to time allegations of improper conduct by the police are substantiated.  The testimony of police witnesses is to be approached with the same care as the testimony of all prosecution witnesses of apparently good character and no special weight placed on the evidence of a police officer simply because he a police officer.

8.That said, whether a comment of that kind will render a decision unsafe depends on the use to which it is, in the context of the reasoning as a whole, put.  It is, for example, not permissible for the decision maker to be detracted from an objective and fair assessment of the evidence of a witness by concern for the impact on a witness’ future career of a finding adverse to him or her.  Similarly, it would be illogical to proceed on an assumption that a police officer is less likely to lie than another person of apparently good character simply because he is a police officer; or that a witness would not lie because if he did he would lose his job.  Nor should a tribunal of fact conclude that because a witness is a police officer an allegation of framing a suspect is to be dismissed out of hand.  Particular care must be taken by judges who instruct juries to avoid suggestions that will lead the jury along such impermissible lines of thought; and a judge sitting alone must not permit himself to assess evidence along those lines.

9.In this case we are satisfied that the judge did not in the event dismiss the allegation of framing for any of these impermissible reasons.  It is significant that the judge’s comment to which objection is taken did not rest there.  It is clear from what thereafter followed in the Reasons for Verdict that the judge did not assume that an allegation of police framing was one to be dismissed out of hand, for she specifically went on to analyse the allegation in the light of the facts that were common ground to see whether it survived rational scrutiny.  She analysed the suggestion of improper conduct in some detail, an analysis that could only have been relevant on an assumption that police officers might conspire to fabricate evidence.  She said that “if this was a frame-up, either the cocaine or the cannabis would have been enough to frame you up.  There was no need to have both.”  She added: 

“39.   This was a large amount of drugs involved - that is the cocaine.  It is inexplicable why a police officer or these police officers would bring along a large quantity of drugs to be planted on you when a small portion will do.  Why would these police officers go through all the trouble of bringing along 72 packets of cocaine and a packet of cannabis when this is clearly wholly unnecessary?  A large quantity of drugs, such as cocaine in this case, is not easy to come by.  What reason would a police officer have carrying with him a large quantity of drugs for framing, the defendant, with trafficking or possession? 

40.     If there was an intention to frame you, defendant, the implementation thereof could easily be done by carrying with them a small quantity instead of a large quantity to make this false accusation.  Cocaine is a very, very valuable commodity.  This was not a small amount I do not believe the police officers would walk the streets with that, all to frame a person whom they did not know, if, as your defence infers, the drugs were found in the motorbike.  I also do not believe that these officers would deliberately frame you up and say that these drugs belonged to you.”

10.In our judgment, the analysis is not flawed and, more to the immediate point, it is an analysis which puts to rest such concern as might otherwise be occasioned by the comment which is the subject of this ground of appeal.

Other grounds 

11.Complaint is made (Ground 3) of the remark by the judge that the cocaine constituted a large amount of drugs and was a very valuable commodity.  Mr McGowan says that there was no testimony about the value of these drugs.  This is, in context and with respect, a weak point.  This was a trial before a judge alone and an experienced judge at that, and it seems to us that the judge was doing no more than taking judicial notice of the fact that cocaine is a valuable commodity.  So it is.  No evidence was needed.

12.Ground 2 complains that the applicant was asked questions in cross-examination, and later by the judge, touching upon the fact that the applicant was driving this motorcycle when the licence fee had not been paid and when, therefore, the vehicle was uninsured.  The suggestion is that the judge ought not to have permitted questions which reflected adversely on the applicant's character and that she failed to direct herself about the use to which this evidence might properly be put.

13.Again, context is everything.  The fact of the matter is that the evidence that the vehicle was unlicensed emerged from the applicant himself in his evidence in chief.  Beyond that, the point of the question was palpably not to adduce evidence injurious to the character of the applicant but, rather, to test the version of events which he had proffered.  It was no doubt in recognition of that fact that Counsel raised no objection to the question, save to suggest that a warning against self-incrimination was required.  The applicant’ s case was that the reason he was in possession of this vehicle was that he was taking it to a prospective purchaser.  If that version was correct or might have been correct, it potentially assisted his case.  But the fact that the vehicle was unlicensed and uninsured, if a fact known to the applicant, raised the question why he would take the risk of driving the vehicle to meet a prospective purchaser (the very fact being challenged) rather than ask the prospective purchaser to come see the vehicle.  There is nothing in this point.

14.The fourth ground, introduced by an amendment to the perfected grounds of appeal, suggests that the judge “descended into the arena”.  We have been taken to a number of suggested instances.  We have read almost 120 pages of transcript to put into full context the passages of which Mr McGowan complains.  Cross-examination on behalf of the applicant was extensive and, proportionately, the interruptions were few.  Sometimes the judge showed frustration, but when she did so it was because the questioning was less than clear and she was, in our judgment, entitled to interrupt as she did.

15.There was one occasion when she prompted prosecuting counsel to ask the owner of the vehicle whether the drugs found in it were his.  Counsel for the prosecution had forgotten to ask this very obvious question.  The complaint is that the judge ought not to have done this and that she thereby donned the mantle of the advocate.  We do not agree.  As has often been said, criminal proceedings are not a game and whilst the judge must not conduct, or appear to conduct, the prosecution’s case for it, an intervention of the sort now attacked in respect of a point not in issue - the defence case was planting by the police, not possession by the motorcycle owner - a reminder of a simple point overlooked by the prosecutor comes nowhere near crossing an impermissible boundary.

16.The fifth ground complains of inconsistencies in the police evidence to which, it is said, the trial judge failed to accord sufficient or proper weight.  We have examined each, and the complaint is not made out.  The judge addressed each in detail and her analysis of the suggested inconsistencies was realistic.

17.We have sought to urge counsel on previous occasions to tackle the question of inconsistencies, particularly at the trial stage, with a degree of realism and not to treat witness statements as instruments drawn with the care of the legislative draftsman, or oral evidence as divorced from conversational language with all the idiosyncrasies, colloquialisms, and turns of phrase - the meaning of which is perfectly clear by the application of common sense - that that implies.  So, for example, enormous play was made in cross-examination of PW3 and PW4 of the fact that they had said in their witness statements that they saw PW2 “struggling with the male wearing a black coat, a pair of dark blue jeans and carrying a black rucksack on his shoulder”; whereas in their oral testimony they said that when they first saw the applicant, he was engaged in a struggle with PW2 and the rucksack was on the ground.  One of the officers tackled about this in cross-examination hinted, sensibly we think, that the point being made was based on an overly literal interpretation of that part of the written statement.  He explained that he had conflated two facts in that statement: that there was a struggle and that the applicant had been carrying a rucksack.  This was a perfectly reasonable explanation and in any event the importance of the point has been inflated beyond its worth.  Whilst inconsistencies are sometimes material and helpful to the defence, there are often more fruitful and realistic tests of veracity. 

18.The final, and sixth, ground is a wrap-up ground that the applicant's conviction was unsafe or unsatisfactory.  It adds nothing to the other grounds.

Conclusion

19.The first ground of appeal, directed at the comment, that the police had a lot to lose, raised a clearly arguable point.  For that reason, we grant the applicant leave to appeal against conviction, and treat the hearing of the application as the appeal.  However, for the reasons we have provided, the appeal is dismissed.

Mr James HM McGOWAN instructed by Messrs Tang, Wong & Cheung, for the Applicant

Mr William TAM, SADPP, of Department of Justice, for the Respondent