HKSAR v. Chan Siu Kit

CACC83/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2010

(ON APPEAL FROM DCCC NO. 1014 OF 2009)

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BETWEEN

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Before: Hon Cheung, Yeung and Hartmann JJA in Court

Date of Hearing: 24 May 2011

Date of Judgment: 24 May 2011

Date of Handing Down Reasons for Judgment: 13 June 2011

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons of the Court):

Introduction

1.On 10 February 2010, following a trial in the District Court before His Honour Judge Yau, the applicant was convicted of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drug in question was a total of 39.27 grammes of a mixture containing 25.30 grammes of heroin hydrochloride.  The applicant was sentenced to 6 years’ imprisonment.

2.The applicant sought leave to appeal his conviction.  Having heard submissions, we refused leave, dismissing the application.  We said that we would give our reasons later and do so now.

The principal ground of appeal

3.On behalf of the applicant, Mr Kwan advanced one principal ground of appeal.  He advanced other subsidiary grounds but accepted that, if the principal ground failed, the subsidiary grounds on their own were not capable of supporting a finding that the applicant’s conviction was unsafe and unsatisfactory.

4.The principal ground of appeal was based on evidence that emerged during the course of the prosecution case that the arrest of the applicant had been part of an anti-dangerous drugs operation in which the officers involved had been briefed as to a target person, a man fitting the general description of the applicant.  Mr Kwan contended that, in light of that evidence, the judge had erred in not specifically directing himself that the evidence was to be ignored.  In the result, so it was argued, the conviction of the applicant was vitiated by a material non-direction.  As Mr Kwan chose to express it: justice was not seen to be done.

Background

5.In light of Mr Kwan’s submissions, the relevant background facts may be summarised as follows.

6.On the evening of 8 July 2009, Police Constable Wong Chiu Chun and a number of fellow officers were briefed by their superior, Sergeant Lam Yiu Tong, that an anti-dangerous drugs operation was to take place that night in Mongkok in the vicinity of the Metro Harbour Plaza.  When he testified, Sergeant Lam volunteered that he had told his officers -

“…to pay attention to a male aged 25 to 30, about 5 foot seven or 8 inches tall, strongly built, short hair and was carrying a black shoulder bag .”

7.Constable Wong was the first witness for the prosecution.  He testified that at about 10.25 that night he saw the applicant and a female companion, later confirmed to be the applicant’s girlfriend, walking towards the Metro Harbour Plaza.  Concerning the applicant, he said:

“At that time, he was wearing a blue polo shirt with white stripes, deep-coloured trousers, and he was wearing a black shoulder bag. Because his appearance was similar to our target, that’s why I paid attention to this male. At that time, I saw he was hand-in-hand with a female. It seemed that he was in a hurry at that time and he looked nervous… that’s why I followed him and observed him at the same time.”

8.Constable Wong said that, as he followed, the couple quickened their steps and walked hurriedly to the escalator leading up to the first floor of the building.  They were stopped on the first floor.  Constable Wong testified that he asked them to produce their identity cards and told them that he would search them on suspicion of possession of dangerous drugs.  He then called for the assistance of other officers.

9.When the other officers arrived, Constable Wong said that he dealt with the applicant who, in his opinion, had all along looked nervous.  When initially questioned, the applicant said that he was a spectacles salesman and was living with his girlfriend in the Metro Harbour Plaza.

10.Constable Wong testified that, when he asked the applicant what was inside his shoulder bag, the applicant replied: “Ah sir, can we talk?  There’s something inside my bag.”  However, when he was asked what it was, the applicant did not reply.

11.Constable Wong testified that he then looked inside the shoulder bag, finding a number of items including a brown envelope.  It was not sealed. Inside the envelope a plastic bag was found containing a number of pellets of suspected heroin.

12.The applicant was then taken to a nearby staircase to be searched.  Constable Wong said that he examined the contents of the brown envelope again and discovered further pellets containing suspected heroin.  It was when he examined the brown envelope a second time, said Constable Wong, that the applicant said to him: “Ah Sir, I only received $1,000 from someone to carry it.  My girlfriend does not know it.”

13.It was then that the applicant was arrested and cautioned for trafficking in a dangerous drug.  According to Constable Wong, having been cautioned, the applicant said: “Ah sir, these four packets of white powder, I was carrying them for someone else.  I only received $1,000.  Give me a chance.”

14.Constable Wong said that he then asked the applicant two questions.  First, he asked him for whom the applicant was carrying the drugs, receiving the reply that the applicant only knew him as “boss” , a person who would instruct him where to collect the drugs and where to deliver them.  Second, he asked him how many pellets were in the bag, receiving the response that there were 180 pellets.

15.In the early hours of the morning of 9 July, details of the arrest itself and what Constable Wong recalled being said by the applicant under caution were reduced to writing.  The applicant signed a declaration confirming the accuracy of what had been written.

16.More than 12 hours later, at about 2 p.m., the applicant agreed to a video-recorded interview under caution.  In the course of that interview, he made a number of admissions which were consistent with the admissions he was said to have made at the scene of arrest.  That interview was concluded when a legal representative arrived at the police station.

17.At trial, the admissibility of both the post-recorded statement and the video-recorded interview were unsuccessfully challenged by the applicant.

18.The applicant chose to give evidence in his defence, calling three witnesses.  It was his defence that, shortly before his arrest, he and his girlfriend had gone to see his ‘godmother’ who was a beautician.  The applicant testified that in the past he had occasionally delivered beauty products for his godmother and therefore had no reason to question why she should on this occasion have given him a brown envelope with instructions concerning its delivery.  He said that he put the envelope into his bag without looking at its contents.  The godmother herself gave evidence, saying that she had been asked to take possession of the brown envelope on a temporary basis for a man she knew as Ah Ben who regrettably she had not since been able to contact.

19.In short, at trial the applicant did not dispute the fact that the drugs in the envelope had been in his possession, the core issue was one of knowledge.

20.In very detailed Reasons for Verdict, the judge was satisfied that he could rely on the accuracy and truthfulness of the evidence of Constable Wong and the other prosecution witnesses.  Except in respect of peripheral matters, he rejected the defence evidence.  On a consideration of all the evidence, the judge was satisfied that the applicant at the time of his arrest “knew very well” that he was carrying heroin.

The principal ground of appeal

21.The judge commenced his Reasons for Verdict (para. 5) by stating that on the night of 8 July 2009, before deployment, there had been a police briefing concerning “an anti-dangerous drugs operation to be mounted at Metro Harbour Plaza in Mongkok”.  The judge went on to make the observation that a: “description of the target person was given during the briefing.”

22.At no other place in his lengthy and detailed Reasons for Verdict did the judge make any further reference to the fact of the briefing or that the officers who were briefed were given a description of a targeted person.

23.More particularly, he made no mention of Constable Wong’s evidence that one of the reasons why he had followed and intercepted the applicant was because he fitted the general description of the targeted person.  In respect of Constable Wong’s evidence concerning the applicant’s arrest, the judge restricted his recitation of the evidence to the following:

“At about 2225 hours, while making observation at the junction of Fuk Lee Street and Man On Street, [Constable Wong] saw a male and a female entering Metro Harbour Plaza. They appeared to be in a hurry and looked nervous. It is not in dispute that they were the defendant and his girlfriend, Ms Yip Kwai Ling.

[Constable Wong] followed them. The couple quickened their steps and walked hurriedly to the escalator to go up to the first floor. [Constable Wong] intercepted them outside the Wellcome Supermarket…” (paras. 7 and 8)

24.It is not in any way surprising that the judge made no mention of the fact that, in the opinion of Constable Wong, the applicant resembled a person described earlier at the briefing.  That evidence was not only wholly irrelevant it was materially prejudicial.

25.It was Mr Kwan’s submission that in the circumstances of this case, having failed to comment at the time the evidence was given that it was wholly irrelevant, the burden then lay on the judge in his Reasons for Verdict to make it known how he had dealt with that evidence.  This failure, so it was submitted, had two consequences.  First, there had to be the real possibility that the judge’s view of the evidence generally was coloured by this inadmissible evidence to the extent that he was more ready to accept the prosecution evidence and to reject the applicant’s evidence.  Second, even if a professional judge could be held not to have fallen into such error, a reasonable and informed observer may well have formed the view that he had fallen into such error and in the result justice was not seen to be done.

26.In our judgment, Mr Kwan’s submission lacked merit.  We say so for the following reasons.

27.It is well-settled that there is no obligation on a District Court judge to give a direction, either orally in court or in writing in his Reasons for Verdict, in respect of every material issue of law that may arise during a trial.  Inadmissible evidence, such as the reference by police officers to an accused as a ‘targeted person’, will, despite the vigilance of counsel and the judge, arise from time to time in trials.  When it does arise, it is potentially of far greater damage in a jury trial, the jury being a body of lay persons, and will require a clear direction from the judge to neutralise its prejudicial effect.  In the District Court, however, absent some unambiguous indication that the judge has fallen into error, it should be taken that a professional judge will recognise it as being of no relevance to the issues that have to be determined and will not in any way take it into account.  As this Court observed in R v Chow Hoi Ping (unreported) CACC 322/1989 (per Power JA):

“… the failure of a trial judge sitting without a jury to hold explicitly that he is putting inadmissible or prejudicial evidence from his mind does not necessarily cast doubt upon the propriety of the conviction.”

28.There may of course be occasions, just as there was in Chow Hoi Ping, when the inadmissible evidence is so gross and so prejudicial that it cannot be allowed to stand without comment from the judge.  In Chow Hoi Ping, fairly extensive evidence was admitted (without objection from counsel or the court) that the police kept a list of ‘target traffickers’ compiled on information received from drug addicts and that the applicant was on that list, indeed that they were looking for him because he was considered to be a “dangerous drug trafficker”.  In light of the fact that such egregious evidence had been admitted into trial, the Court and was compelled to the finding that –

“… in the circumstances that obtained here, the trial judge was, in order to ensure that justice was seen to be done, called upon to state explicitly not only that the evidence was inadmissible but also that he was putting it entirely from his mind when considering the admissible evidence.

His failure so to do leaves us uneasy to an extent which drives us to the conclusion that the conviction must be regarded as unsafe and unsatisfactory…”

29.As always in matters of this kind, it is a question of context and degree.  In the present case, the offending evidence, while of course it should not have been permitted, bore no comparison with gross nature of the evidence admitted in Chow Hoi Ping.

30.More importantly, in the present case there is every indication that the judge purposefully avoided any reference to Constable Wong’s testimony concerning the applicant’s resemblance to the targeted person and did so because he recognised that it was wholly irrelevant.

31.First, as we have already indicated, when the judge recounted the Constable’s evidence of the circumstances surrounding the arrest, even though the Constable had said that one of his reasons for acting in the way he did was his belief that the applicant resembled the targeted person, the judge said nothing of this evidence.

32.Second, when commencing his evaluation of the evidence (para. 88) – having recognised that the core issue was not whether the applicant had been carrying drugs, that was always admitted, but whether the applicant knew the true nature of what he was carrying – the judge listed the main issues that fell for determination in respect of that matter.  In doing so, in respect of the circumstances surrounding the arrest, he restricted himself to saying that they were whether the applicant and his girlfriend had been seen walking in a hurried manner and whether, before they were intercepted, they looked nervous.

33.In this regard, the judge was satisfied that he could rely on the relevant evidence of Constable Wong; in short, that the applicant had been stopped because he was seen walking in a hurried manner and because he was looking nervous and it was these matters, taken together with the applicant’s later confessions, that led the judge to the finding that the applicant knew that there were dangerous drugs in the brown envelope in his shoulder bag.

The subsidiary grounds of appeal

34.Mr Kwan accepted that, if his principal ground of appeal failed, his two subsidiary grounds, which were in the nature of make-weights, had to fall away.  Mr Kwan did not seek to advance oral submissions in respect of either of them.  

35.In light of Mr Kwan’s concession, there is no need for us to deal with the subsidiary grounds.  However, for the sake of completeness, it should be said that, having examined them, we were satisfied that they too were without merit.

Mr Wayne Walsh, Deputy Law Officer (Mutual Legal Assistance), of the Department of Justice, for the Respondent

Mr Kwan Tong Lee, instructed by Messrs T.C. Foo & Co., for the Applicant