Tsang Yiu v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 661 OF 1972 -----------------
----------------- Coram: Full Court (Rigby, C.J., McMullin & Leonard JJ.) Date: 4th January, 1973 ----------------- JUDGMENT ----------------- Leonard, J.: 1. On the conclusion of this case we allowed this appeal and discharged the appellant. We stated that we would give our reasons in writing later and this we now do. 2. The appellant was charged together with one LI Ting-chun with possession of a dangerous drug (31.78 kilogrammes of raw opium) for the purposes of trafficking. Apart from statements made by the appellant the only evidence against him available to the Crown at the commencement of the trial consisted of the following facts. 3. On the evening of the 5th July 1972 at about 7.35 p.m. alert revenue officers on mobile patrol in a car on which there were Government emblems noticed in the vicinity of Pak Ngan Shek in the New Territories a private car, AE7359, of which one, LI Ting-chun, was the driver and in which the appellant was a passenger. For reasons best known to them they followed this car and from the glances cast on them by the appellant and LI Ting-chun formed the view that by so doing they caused apprehension to the occupants. 4. They stopped the car and one of the revenue officers went up to LI Ting-chun and asked him to open the boot. This he did with a key which he had in his possession. In the boot there was cardboard box. The revenue officers asked Li what was in it and he said it contained plastic key rings. It was opened and found to contain the opium. Immediately after their arrest both were cautioned and neither had anything to say. 5. It will thus be seen that while the case against Li was extremely strong having regard to the presumptions contained in Section 46 and 47 of the Dangerous Drugs Ordinance (Cap. 134), apart from the statements we mentioned, and a visit to premises at Tai Po to which we will hereafter refer, the case against the appellant was unsustainable. 6. The trial took an unusual course. 7. The first witness for the prosecution was a Mr. Prowse, an Inspector of Police, who gave evidence of having charged the appellant after he had “assigned two D.P.C.’s to interview each accused”. The statement of the appellant in answer to the charge was unchallenged at this stage and was admitted as Exhibit Two. It appears from this exhibit that the appellant was charged at 11.30 a.m. on the 6th July 1972, that is some 16 hours after his arrest, and that in answer to the charge he wrote, in his own handwriting, a statement in Chinese which has been interpreted as meaning “I’ll go with you in a vehicle to Tai Po to the second last hut where opium is stored by CHAN Shing”. In view of the fact that in colloquial Chinese there are no definite articles or tenses clearly this could equally well have been translated to read “I went with you in a vehicle to Tai Po, second last hut where the opium was to have been stored by CHAN Shing”. 8. After the revenue officers had given evidence the first accused decided to change his plea to one of guilty, whereupon the following exchange took place:
9. There upon the learned trial judge heard a plea in mitigation and sentenced the first accused to two years’ imprisonment. 10. The first accused was then called to give evidence for the Crown. This evidence was to the effect that he was the owner and driver of the vehicle in question which he ran as a “pak pai” and in which he and the appellant were travelling at the time of their arrest. He stated that a Mr. Chan had earlier the same day at Sham-shui-po Ferry Pier asked him to go in his car with the drug to Nam Ti near Castle Peak. He was to meet a man who would be wearing a pair of shorts and whose hair would be crew cut, that that man could be identified as he would ask the first accused for a match whereupon the first accused was to ask him if he was going to Tai Po. If he replied in the affirmative the first accused was to hand over the dangerous drugs to him. The first accused said he went to Nam Ti where he had met the appellant who identified himself as Mr. Chan had promised but refused to take immediate delivery of the drugs “as he did not have a place to put it in Nam Ti” but instead had instructed him to drive to Tai Po. 11. The evidence given by the first accused as to his conversation with Mr. Chan was, therefore, of considerable importance for, if accepted, it indicated that the appellant was in joint possession of the drugs and was susceptible of corroboration by the statement in answer to the charge which at that stage was apparently properly before the court. 12. Mr Ming Huang, counsel for the appellant at his trial and who also appeared for him at the hearing of this appeal, objected at the trial to the admissibility of the evidence given by LI Ting-chun on the ground that it was hearsay evidence and therefore inadmissible. However, learned trial judge admitted the evidence in doing so, he said this:
13. The reference to Archbold is a reference to that paragraph dealing with the admissibility of the acts and declarations of co-conspirators in furtherance of a common design. It is pertinent to observe that the appellant had not been charged with conspiracy: nor was there any evidence at the time LI Ting-chun’s testimony was admitted to form the basis for a charge of conspiracy or to connect the accused himself with any such conspiracy. We are satisfied that the ground upon which the trial judge admitted this evidence was in fact incorrect. We are, however, fully satisfied that such evidence was admissible on the basis of the principle stated in the case of Subramaniam v. Public Prosecutor[1]:
14. The testimony given by LI Ting-chun was admissible not for the purpose of establishing the truth of any alleged conversation between him and the mysterious Mr. Chan but to explain and account for his conduct at the time he met the appellant and as to why he picked up the appellant in his car. Whether or not his explanation to account for his conduct was true still remained a question entirely of fact for the trial court. We are satisfied, therefore, that the learned trial judge correctly admitted this evidence although doing so for the wrong reason in law. 15. The nature of the appellant’s defence to the charge was anticipated by the cross-examination of LI Ting-chun, accused, and particularly by the following passage:
16. The evidence of LI Ting-chun having been led, the trial took a further unexpected line in that a sergeant of the Narcotics Bureau gave evidence to the effect that some considerable time before the appellant was charged by Inspector Prowse he, the witness, was “led by” the appellant “voluntarily to Kam Shan, Tai Po” This witness sought to say that the appellant “said he was going to lead us to place where drugs were going to be conveyed”. The admissibility of this was challenged and the following facts emerged. After the arrest of LI Ting-chun and the appellant at about 7.55 p.m. on the evening of the 5th July 1972, they were taken to the Excise Station at Fan Ling. Some time later that same evening a police party from the Narcotics Branch composed of Inspector Prowse, the witness, Sgt. NGAI Kei-chun and others went to the Excise office. There, while Sgt. Ngai interviewed the first accused the appellant was separately questioned by another police officer who did not give evidence. The questioning was supervised by Inspector Prowse who walked from office to office. The questioning commenced at 1.30 a.m. and lasted until 2.30 a.m. Thereafter, according to the sergeant as a result of a conversation he had with the police officer who interviewed the appellant, he, the sergeant, spoke to the appellant. The following passage appears on the record:
17. Thereupon the trial judge made the following ruling:
18. Bench: Yes. You may object to Ex. 2. On all matters objected to I will hear evidence from Crown and from second accused, at conclusion of Crown case, before ruling upon admissibility.” 19. Thereafter counsel for the appellant asked the court to hold a formal voire dire as his cross-examination would be determined by the ruling upon admissibility. After the hearing of the evidence on the voire dire (the appellant remaining silent) Mr. Polson for the Crown made the following submission:
20. That was clearly wrong in that there is no such presumption. It is not clear whether the learned trial judge was influenced by this erroneous submission. In his ruling he commented on the fact that the appellant gave no evidence but rested on the contention that (a) the Crown evidence established that the statement was not voluntary as it came at the end of a lengthy period of questioning and (b) the Crown had not satisfied the onus on it to establish voluntariness as there was such a substantial gap in evidence left by the failure to call the two police officers. In dealing with these two arguments the learned trial judge appears clearly to have misunderstood the onus placed on the Crown for he says:
21. The learned trial judge’s answer to argument (a) with its use of the double negative would seem clearly to show that he misunderstood the nature of the onus of proof which remains on the Crown throughout and which is to establish that the statement is voluntary, while the view taken by him that there was nothing to suggest that the statement was not voluntary does not commend itself to us. On the evidence the appellant immediately after his arrest indicated that he did not wish to make any statement. He was then questioned for at least an hour by police officers and we have no evidence as to the nature of this interview. Immediately after this the sergeant, without giving a caution, suggested to the appellant that the appellant was willing to take them to a place where drugs were stored and the appellant expressed agreement and then the sergeant suggested to the appellant, (why we know not) “My foki did not threaten you, induce you” and the appellant said “no”. The appellant took them to a hut where nothing was a found, but a quantity of what was referred to as “opium paraphernalia” was found in and adjacent hut. The appellant was later (after the visit to the huts) charged by Inspector Prowse (who had been in and out of the room in which the questioning had taken place) with possession of opium for trafficking. In writing out his answer to the charge the appellant makes no reference to the charge but says that he has taken them to the hut – a fact which the police know and which the appellant knows they know. It just does not make sense. 22. We have referred to the fact that the appellant was charged with possession of those drugs at 11.30 a.m. on the morning of the 6th July. It is clear beyond doubt that although arrested at about 7.55 p.m. on the previous evening he had been interrogated without any caution being administered for a lengthy period throughout the small hours. The statement then made by him at 11.30 a.m., from whatever aspect one looks at it is indeed a remarkable one. If it is to be construed in its translation as put before the trial court, namely, that the appellant would “go with you (i.e. the police officer) in a vehicle to Tai Po to the second last (hut) where opium is stored by CHAN Shing.” then it is a statement made ex post facto since the appellant had already taken the police to a hut, save that in that hut to which he took them there was in fact no opium found. If it is to be construed not as a statement of what the accused would do but what he had already done, then it is a truly remarkable statement for a man to have made in answer to a charge of possession of drugs. In answer to such a charge, why should he make reference to having taken the police to a hut where drugs were stored – or were to be stored – by a man the name of whom he specifically mentions? The contents of the statement are only capable of being given some degree of intelligibility when they are considered as being consistent, and only consistent, with the view that these words were put into the mouth of the appellant by someone else and that they certainly did not proceed from him as a free and spontaneous statement made in answer to a charge of possession of drugs. If the statement is considered in that light, and if it is remembered that the appellant, although arrested in the early hours of the previous evening, had been interrogated, without caution, for a substantial period during the early morning hours of the following morning, we think, with respect to the learned judge that there was great cogency in the submission made by the appellant’s counsel that not only had the Crown failed to discharge the borden of establishing that the statement was free and voluntary but that the Crown’s own evidence, quite irrespective of the fact that the appellant himself did not give evidence, went a long way to support the submission of the defence that the statement was inadmissible. We find ourselves quite unable to agree with the pronouncement of the learned judge, when ruling the statement admissible in evidence, that:
23. However, as we have pointed out the learned judge appears in any event to have applied the wrong test: in that it was for the prosecution affirmatively to establish that the statement was, in fact, freely and voluntarily made. 24. In commenting on the evidence of LI Ting-chun the learned trial judge noted that it was the evidence of an accomplice and also that that accomplice had lied in the witness box. He went on to state that although the accomplice’s evidence was “detailed and convincing” he would not have been prepared to act on it unless satisfied that it was corroborated. He found corroboration in the wrongly admitted statements and in the presence and behaviour of the appellant in the car before it was stopped. This presence and behaviour was in itself somewhat equivocal and had it stood alone we have the gravest doubts as to whether the learned trial judge could have regarded it as sufficient corroboration of the evidence of the first accused. It was for these reasons we allowed this appeal.
M. Huang (Ho & Wong) for Appellant Keil, S.C.C. for Crown/Respondent [1] (1956) 1 W.L.R. 965 at p.960. |