HKSAR v. Chan Pui Chi

CACC000706/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.706
(Criminal)

-------------------------------

Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 3 November 1998

Date of Judgment: 3 November 1998

----------------------

J U D G M E N T

----------------------

Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 4th November 1997, following a trial before Deputy Judge Suffiad (as he then was), the Applicant was convicted on two counts of trafficking in heroin hydrochloride. He was sentenced to a total period of 14 years' imprisonment. He now seeks leave to appeal against conviction.

2. The general facts of the case are not important having regard to the grounds of appeal which have been advanced.

3. Ground 1 of what the Applicant terms his "re-organized grounds of appeal" amounts to this. During the trial, Sergeant 23572 had made mention of the fact that the Applicant was a target. Objection was, of course, taken to this by the defence barrister, but the judge took no notice of the objection and permitted the trial to continue. In these circumstances, the Applicant says that it had a serious effect on the trial and was unfair to him.

4. It is apparent to us that the way in which the judge dealt with the matter in his summing-up was such that he neutralized any suggestion which might have been unfair to the Applicant. The way in which the judge dealt with it is at p.41 line E in the transcript, where he said:

"... you may remember that when Mr. Lee was cross-examining PW1 there was some suggestion that the police had received information of drug trafficking activities going on in the building, 219 to 221 Fa Yuen Street and that two persons were involved. I must direct you, members of the jury, to disregard this evidence when considering whether the defendant is guilty or not of the two counts which he faces. This evidence of information received by the police cannot be evidence against this defendant. You must not allow it to prejudice you in deciding the guilt or innocence of this defendant. The only relevance of that evidence in this case is to explain the police actions in keeping observation on that building. Therefore disregard that evidence when you come to decide whether this defendant is guilty or not of the two charges that he faces."

5. In our judgment, no unfairness has been caused and there is no basis for this ground of appeal.

6. The second ground is that, whilst the judge was summing up to the jury, he mentioned the three keys which were keys for the unit where the drugs were being stored. The judge emphasized that this was an important factor in deciding whether the Applicant was in possession and control of the drugs at that place. The trial judge, however, forgot another important factor which is that, whilst he was directing the jury on that aspect, he should have reminded the jury that even if someone is in possession of the keys to the unit where drugs are stored, it cannot be presumed that that person is in control or in possession of the dangerous drugs.

7. Whether deliberately or not, we are not able to say, but that passage to which the Applicant has referred, and he specifically mentions in his grounds of appeal at page 13F-P in the transcript, is only part of what the judge had to say. The Applicant has omitted reference to the further passage where the judge specifically dealt with the complaint that the Applicant makes, so it is important to cover the whole passage starting at page 13F. What the judge said was this:

"There is another type of possession, which arises when a person has custody and control over a thing. This means that although that thing is not in the person's actual physical possession, he has, first, knowledge of the existence and nature of the thing; second, the intention to possess that thing, and, thirdly, the ability to reduce that thing into his physical possession if he so wishes. To put it another way, although he does not have actual physical possession of the thing, that thing is so situated in relation to him or the circumstances are such that one can reasonably conclude that he has the intention, the power and the ability to take possession of it. That is, to get hold of it and deal with it as he likes if the need arises. He is then said to have custody and control of the thing and, in law, he is said to have possession of it.

Possession in this sense depends on all the circumstances of the case, including, first of all, whether that person has access to the thing in question or whether he has access to the place where the thing is kept. Secondly, it depends on whether he has knowledge of the existence and nature of that thing for, if he does not even know of either the thing's existence or its nature, then he cannot be said to have had custody or control of it and it follows he cannot be said to have possession of it.

When you are considering possession in this sense of having custody and control over a thing, you must be careful not to confuse control and custody of the thing and the control of the place in which the thing is found. The two are not the same. If a person is not even in control of the place, then obviously he cannot have custody or control of the thing found therein.

On the other hand, if he is in control of the place as, for example, having the keys to the place, that is only a factor - albeit an important factor - in determining whether he has got custody and control over the thing found inside the premises, because there are other matters you must take into consideration. You have to consider all the circumstances in order to decide whether a person has control and custody of the thing in question."

8. The Applicant today mentioned that there were others who also had keys. The question for the jury to consider was whether this Applicant had the possession and control of the drugs found at the unit and they found that he did. There is no substance to this point.

9. The third ground of appeal is that there was no proper consideration given to the evidence produced by key witnesses, in particular as to their credibility when putting before the court evidence about what the Applicant had allegedly said to police.

10. In a long ground of appeal, the Applicant further complains that there was no foundation for the statements that he had allegedly made being put before the court as voluntary statements of his own. These, he says, were fabricated statements and their introduction into evidence before the jury has led to an unfair trial. There is no need to read out the passages in question, but what is important is to look at how the judge told the jury to approach evidence as to alleged confessions. At page 25 line E, the judge said this:

"You must clearly understand and remember at all times that evidence of oral admissions ought always to be received with great caution - more so when no contemporaneous note is made, which is the case here. Such evidence is necessarily subject to much imperfection, possible inaccuracy or mistake, for either the party making those admissions may have been misinformed or he may not have clearly expressed his meaning or the witness may have misunderstood him or may have purposely misquoted the expression used. It also sometimes happens that a witness, by unintentionally altering a few words, will give an effect to the statement completely at variance to what the speaker actually said.

Keeping this in mind and also keeping in mind the defendant's allegations that all this was fabricated against him by the police officers, it is your job to decide two issues in relation to the evidence of what is alleged to have been said by the defendant. First, you must decide whether or not the defendant actually said the words that are ascribed to him. Second, but only if you are sure he did say those words, then you consider whether or not what he said is true. In determining that, you should take into consideration all the circumstances in which you find the admission was or may have been made. If, for whatever reason, you are not sure whether the admission was made or not sure whether it was true, then you must disregard it. If you entertain any doubt that any of these admissions were made by the defendant, as was told to you by the police officers, not only would you disregard the admissions, but that may also cause you to doubt the veracity and reliability of the rest of the evidence of these police officers. It is only when you are sure beyond reasonable doubt that these admissions were in fact made by the defendant in the manner told to you by the police officers, and that you are sure that what was said by the defendant is true, then you may rely on them and place weight on them as you see fit."

11. Nothing could have been more plain or more fair to the Applicant than the words expressed by the trial judge to the jury in the course of his summing up on this point. It should also be said that before any ruling was made as to the admissibility of the answers allegedly given, the judge had conducted a lengthy voir dire and had given a clear ruling as to the admissibility of those answers. The matter had been approached with great care and there is no merit in this ground.

12. At the start of this hearing, the Applicant was asked whether he was relying upon those three grounds and indicated that he was. The Applicant has been in communication with the court on a number of occasions. He has written a long letter in which he explained what his grounds of appeal were. He then wrote another application, in which he called his grounds of appeal the "re-arranged and amended grounds of appeal" and today we were looking at what he calls his "re-organized grounds of appeal". The Applicant was nevertheless asked if there was anything else that he wished to mention. He then added that his counsel was given instructions in writing. Apparently his counsel was told, according to the Applicant's new ground today, that he wished a number of police officers to be called to testify, but it seems that his barrister did not cause this to be done. He had informed his lawyer also that there was a hole in his pocket where the drugs were allegedly found. These are matters which have never been referred to in any of the Applicant's communications with the court before, and it seems to us that they were a clear afterthought.

13. The Applicant should understand that we are not permitted to accept fresh evidence nor, indeed, except in exceptional circumstances would we entertain at this stage a further ground of appeal. It is perfectly apparent, so far as the point made about a hole in the pocket is concerned, that this would have been mentioned at the trial if it was true and had any importance. The Applicant gave evidence on his own behalf at the trial. Apparently he never thought to mention it. We notice too, in the summing up given by the trial judge to the jury, that the judge reminded the jury of what the Applicant had said at one stage of his evidence and, quoting the judge's words at p.28 line L:

"He told you he was wearing the same clothes then as he was wearing now when he was giving evidence."

14. Quite clearly, there is no substance in the point and we shall not entertain it.

15. This application has been without any merit at all. It is dismissed and, because it has been unmeritorious, two months of the period spent awaiting this hearing will not count towards the Applicant's sentence.

Representation:

Mr. Joseph To, S.A.D.P.P. (AG.) for D.P.P./Respondent

Applicant in person.

Remarks:
Leave to appeal to the Court of Final Appeal: Leave to appeal dismissed. Please refer to the Appeal Judgment FAMC000032/1998.